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BREAKING: Judge Blocks Deepwater Drilling Moratorium

By: Steve Maley (Diary)  |  June 22nd, 2010 at 01:55 PM  | 

RESIZE: AAA

Judge Martin Feldman of the Eastern District of Louisiana in New Orleans, hearing the case of Hornbeck v. Salazar, has blocked the President’s moratorium on all drilling in water depths greater than 500 feet.

The White House is expected to appeal the ruling immediately.

H/T Artie, for d’most part

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COMMENTS

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  • http://www.ArchitecturalShots.com mdyou

    “The White House is expected to appeal the ruling immediately.”

    …Obama takes a course diametrically opposed to the will of Americans and their well being and safety.

    • bk
      • ciscoguy
        • From ME to You
  • ZootSuit

    Because this decision could be a travesty of our constitutional method of government. From the little tidbits I have read and heard so far, Judge Feldman’s decision is just a raw example of judicial activism. Essentially, he is arguing:

    “The Administration did not give a good enough reason for why they are doing what they are doing; therefore I am overturning it.”

    But that is not the issue: whether the judge agrees or disagrees with the reasoning of the administrative agency. The primary question before the judiciary is if the administrative agency has the authority to make the decision that they made. And, quite frankly and unfortunately, I think they do.

    Moreover, again from the little bit I read of Judge Feldman’s decision so far, he has not addressed the primary question before his court.

    While I may agree with the end result of the decision — continued oil drilling — I must strenuously protest the means and methods for getting there.

    • Kyle-MI

      Here is a more in-depth report (hat tip Instapundit)

      http://www.bloomberg.com/news/2010-06-22/u-s-deepwater-oil-drilling-ban-lifted-today-by-new-orleans-federal-judge.html

      It sounds reasonably legal to me, although I am no lawyer. It also sounds like reasonable action has been taken to re-inspect all the rigs and ensure there isn’t another disaster.

      • ZootSuit

        I need to read the full decision before I make final judgment. Again, it’s not the results that I dislike: it’s the possible reasoning that I may have a problem with.

        Even quoting the quote from the article

        ?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.?

        The question remains, Isn’t it — or at least, why isn’t it — within the legitimate purview of the administrative agency to assume that because one rig failed then all new well over 500 feet universally presents an imminent danger?

        Again, I disagree with the Obama Administration and actually do agree with the results of the decision. I just question the judges — any judges — right to make such a decision.

        Consider if the situation were reversed. Suppose there was a more “pro-drilling” President in the White House and after this disaster in the Gulf, that President then said we will continue drilling deep wells in the Gulf. But then some “pro-environment” group sues to stop the drilling and the judge in the case agrees with them, saying something to the effect that, “The ‘pro-drilling’ administration has not shown that it has sufficiently considered the hazards of deep water drilling and therefore I am instituting a moratorium on them.” Wouldn’t we conservative be upset by such judicial overreaching?

        Indeed, such things as the above do happen and when they do, aren’t we conservatives quite correctly lamenting the lack of judicial restraint?

        • yoyo

          http://www.laed.uscourts.gov/GENERAL/Notices/10-1663_doc67.pdf

          22 pages.

          • ZootSuit
          • yoyo

            The “fun” is in the foot notes and the text starting at pg 16.

          • ZootSuit

            I’m shocked, shocked I tell you!

            But the decision basically limits itself to a question of providing the proper basis for the remediation. From a non-partisan legal perspective, I would say that the Obama Administration can and probably should (again, looking at this from a non-partisan legal perspective) appeal. It would have a much stronger argument if it limited the moratorium to wells of more than 1000 feet and prescribed specific remedial actions necessary for operation.

          • dennism

            Let me just chime in to say that an injuction is a darn hard remedy to get.

            HEAR ME NOW, BELIEVE ME LATER. In your lifetime you will rarely see a judge give injunctive relief to the plaintiff. It’s always the plaintiff that asks for an injunction by the way… and they always do ask for it.

            The test for an injunction is “irreparable harm.” That means the kind of harm that money can’t fix. The plaintiff argued that money will never be able to compensate him for the damage he’ll suffer because of the moratorium. He won over the judge.

            The chances that this will be overturned on appeal are very small, in my estimation. Take that with a case of salt. I didn’t think Hornbeck would get the injunction.

            Salazar and his buddies pretty clearly have the right to lay on a moratorium, but they can’t abuse their discretion. In Hornbeck, the judge didn’t think the Gubbermint showed why a moratorium was needed. They didn’t show him any leg…

        • jaybo

          First point from the judge’s decision; federal regulations allow for judicial review.

          II. Administrative Procedure Act
          A. The Administrative Procedure Act authorizes judicial review of
          final agency action where there is no other adequate remedy in a
          court. 5 U.S.C. ?704; see id. ?702

          Secondly, the federal government cannot use “speculative injury” to justify its action.

          “Ridgely v. FEMA, 512 F.3d 727, 734 (5th Cir. 2008).
          ?Speculative injury is not sufficient [to make a clear showing
          of irreparable harm]; there must be more than an unfounded fear on
          the part of the applicant.? Holland Am. Ins. Co. v. Succession of
          Roy, 77 F.2d 992, 997 (5th Cir. 1985); see Wis. Gas Co. v.
          F.E.R.C., 758 F.2d 669, 674 (D.C. Cir. 1985) (?[Irreparable] injury
          must be both certain and great; it must be actual and not
          theoretical.?).”

          Looks like The Obama Thugocracy ran into the brick wall of its own regulations. It’s too bad that it has to be a judge that informs The Administration that it actually has to live by and enforce its own laws and regulations.

          This is not the actions of an “activist judge”. This is simply the actions of a judge that is following the laws currently on the books.

    • Scope

      of all the other rigs immediately after the explosion, and, no safety problems were found, yet the government is claiming that there are safety concerns for all of the rig workers. In addition, Salazar added wording to a report from MMS? that falsely claimed that they supported a moritorium, when they did not.

      The O promised that this would never happen again, which was a false promise, that is unless he never allows drilling in deepwater again in the US. Funny thing that he loaned Brazil’s Petrobras $2 billion to do deepwater drilling at far deeper depths than anyone in the Gulf.

      Here’s more info on the case-

      http://patterico.com/2010/06/20/oil-service-companies-ask-judge-to-lift-obamas-offshore-moratorium/

      Zootsuit, I am not sure why you are questioning the Constitutionality of the judges decision, when the moritorium instituted by this admin. was unconstitutional to begin with.

      • ZootSuit

        Again, I disagreed with it but this is the first time that I am hearing that it is unconstitutional.

        As I was telling a friend the other day (about a completely different subject), the United States Constitution does not forbid the “stupid” no matter how stupid the “stupid” is; it only forbids the unconstitutional. That’s something that even Hard-Right conservatives (like my friend) need to remember, too.

        • Scope

          and pay particular attention to the wording- “Instituting the moratorium is “arbitrary, capricious, an abuse of discretion and otherwise is not in accordance with the APA and OSCLA and it’s regulations.” There is alot more there to read.

          • ZootSuit

            is not necessarily unconstitutional. Sorry but it’s not!

            Something may be all those things and even “stupid” and still not be unconstitutional.

            All law is arbitrary and to some extent capricious. Why is it illegal to sell a beer to someone who is 20 years, 354 days old but it is perfectly legal to sell one to someone who is only three days older?

            Without regards to the relative maturity or circumstances or whatever between the two individuals.

            And why must a person with 20/30 allowed to drive an automobile without corrective lenses (in most states) while someone with 20/40 vision is not?

            They both have imperfect vision, why the arbitrariness between the two cases.

            Again, all laws are somewhat arbitrary and capricious. That is not a reason to declare them unconstitutional.

            I will also say that after reading the decision I am somewhat more comforted by it although I still have a few concerns. The decision is surprisingly limited in its scope; which I think is a good thing. It is also noteworthy that the issue of a “takings” was not exploited in the decision.

          • http://www.twitter.com/AveSharia evanm

            It is somewhat convoluted to say that an arbitrary and capricious administrative action is unconstitutional, though it is technically correct.

            The Administrative Procedures Act adopts the “arbitrary and capricious” standard for administrative action. An administrative agency operating in violation of that act is “unconstitional.” It seems redundant to make that distinction though- all violations of statutory law by federal agencies are unconstitutional this way.

          • http://www.twitter.com/AveSharia evanm

            Second paragraph, second sentence is written such that the agency would be unconstitutional, when I meant to say the agency’s action.

          • ZootSuit

            And I confess that I should have worded my comment better. Perhaps a better way of making my point is to say that the temporary ban or moratorium could have been enacted in a way that would not be considered “arbitrary and capricious.”

            Moreover, I do want to emphasize that the legal standard of “arbitrary and capricious” is different from what may be considered the standard definition. Again, just all laws and administrative actions almost be definition have an element of “arbitrariness and capriciousness” to them. But that obviously does not mean, ipso facto, that all laws and administrative actions are unconstitutional.

          • http://www.twitter.com/AveSharia evanm

            I’m not really into nitpicking over language when I pretty much get what you mean. But I also pretty much get what Scope meant- (he, and I, and I think you) think the MMS decision was way overkill. Sans justification, “overkill” is “arbitrary and capricious,” and, whether illegal or unconstitutional, a violation of agency law.

            To get to the bottom of the issue, I don’t think this decision can be called activist. It’s a little short for my taste, but it doesn’t look to be upending any established law. It also might be ripe for reversal, since it imposed a preliminary injunction. I would have liked a bit more analysis on standing from the court.

          • ZootSuit

            And despite my tone, I actually think Scope and I are in more agreement than disagreement. Yes, I do think the moratorium was overkill.

            My fear was — as I admitted that I had not initially read the full decision — that, as described by some, the decision could easily have been overkill itself. Having now read it, I am actually pleased with it. Let me know say that I do “celebrate” Judge Feldman’s temporary injunction. And as the Obama Administration is appealing the decision, I look forward to a more thorough analysis on the standing and merits of the case.

          • http://www.thehayride.com MacAoidh

            …due process, absolutely.

          • Richard Mullins

            Drilling Ban is illegal,says ex-MMS lawyer

            One excerpt of it should give a little bit on understanding

            The Notice to Lesses directing the suspension of operations cited the need for safety or environmental equipment necessary to prevent injury or loss of life and damage to property, Coleman said. The NTL also states the causes of explosion on the Deepwater Horizon rig are still under investigation

            That fact of it being illegal was an uphill challenge for the government to keep the moratorium going. BTW, the other challenge to the moratorium from Diamond Offshore in Houston is being heard today here as well. I’m sure that Judge Nancy Atlas will rule in favor of Diamond Offshore.

        • JSobieski

          But you are right that the line between arbitrary/capricious and dumb but rational basis is often grey. I think the scope of the moratorium is what led to the rulng. If the moratorium was limited to a particular type of rig, a particular company, etc. it would have survived.

          Imagine placing a moratorium nationwide on the practice of medicine because one lawyer committed a homocide. At some point, the scope of the action is so huge that the test of reasonable basis has to pertain to the scope.

    • http://www.thehayride.com MacAoidh

      …established law.

      http://thehayride.com/2010/06/breaking-judge-throws-out-obamoratorium

  • yoyo

    Just a quick read….
    ————-
    After reviewing the Secretary?s Report [snip], the Court is unable to
    DIVINE OR FATHOM a relationship between the findings and the
    immense scope of the moratorium. (emphasis mine)

    pg 17 of the Ruling. Also, see note 9 on the same page – Freaky…
    H/T Jamie Dupree via Michelle Malkin
    ————-

    Divine – as in divining rods – those used “way back in the day” to find water, but more specifically, WHERE TO DRILL.

    Fathom – as in water depth – as in the “Deep Water Moratorium” that was enacted on the SOLA and Golf Coast (oops, I mean Gulf Coast) by Oilbama.

    I dont know if it was meant as an overt slam or not, but – way cool nonetheless.

    • ZootSuit

      (Perhaps a hyperbole but it does illustrate my concern.)

      As a judicial conservative who believes in judicial restraint and textualism, I have often argued that the courts very often go way to far and beyond their constitutionally prescribed limits when they look into the “reasoning” behind a particular law or administrative action. Again an oversimplification but the judiciary is limited to asking two fundamental questions:

      1) Is the law or administrative action in harmony with the (“plain letter” understanding of the) Constitution?

      2) Is it within the purview of the legislature or administrative agency in question to make the law or take the action in question?

      In confess that I have not read the actual opinion in full yet but so far, I question whether Judge Feldman’s decision is limited in its proper sphere.

      • yoyo

        It is my understanding that an Administrative Edict (such as this moratorium) is only as strong as the paper it is written on. It does not carry the force of law; if it did, what need of the Legislative branch – or Judicial for that matter.

        What this ruling is saying, essentially, is that if you want to place a moratorium on deep water drilling, pass the law. The MMS findings do not warrant the response by the Administration, and the moratorium oversteps the authority of the MMS and DoI.

        • ZootSuit

          The idea is that administrative agencies, as part of the Executive Branch, have the power to make decisions and rulings necessary for the fulfillment of their responsibilities. And yes, that it is a complicated and still somewhat controversial question: the limits of the administrative agency rulings vis-a-vis the Legislature.

          Of course, yoyo, I get the feeling that I am not telling you anything you don’t already know. My sincere apologies if the above may sound condescending. I honestly do not intend it to be so.

          My thing is, depending on what the decision actually says, I fear that it may overstep the judge’s legitimate authority. Again, I am going to have to wait until I read it in its entirety. Because it just may be a masterfully written decision well within the legitimate authority of the Court to make or it may be a case of judicial activism and overreaching that I cannot approve even if I like and even agree with the result. I will not know until I read the decision for myself.

          • dennism

            …is one made on unreasonable grounds or without any proper consideration of circumstances. Political considerations would usually be improper grounds and no consideration of all the jobs at risk (if the rigs move away) would be an improper consideration of the circumstances.

          • yoyo

            Yeah, he is dead, but you are not going to use the kitchen any time soon.

            There were/are better ways of handling the situation than to stop all production/exploration.

  • Scope

    about the 5th Circuit Court of Appeals in LA? That’s where the O’s team is headed.

    • joayn

      And guess which SC justice oversees the 5th Circuit? Hmmm, why I believe it’s Justice Scalia.

      • Richard Mullins

        The ones in the Western District of Texas in San Antonio and from all I’ve noticed, it’s common in the entire 5th Circuit.

    • http://www.thehayride.com MacAoidh

      …and one of, if not THE most, pro-business and conservative appellate courts in the country, will go Obama’s way.

      He doesn’t have law on his side, and he doesn’t have any judges willing to give him a fair shake when their neighbors are being put out of business by presidential fiat.

      Trust me, we got this.

      • graciegirl

        that the rigs are being bid on and are about to be moved…to Brazil maybe?

  • redtillimdead

    SUCK IT OBAMA!

    • acat

      Mr. President, we are a nation of laws. Your mandate may or may not be in violation of the laws, but that is for your justice department to prove, and in the meantime, while my court is waiting for you to get off the golf course, the people of the Louisiana oil patch may continue to do their jobs.

      Mew

  • http://www.ArchitecturalShots.com mdyou

    …don’t seem to interest Eric Holder. How is going to handle Arizona and the Gulf moratoriam? He can’t walk and chew gum at the same time.

  • Richard Mullins

    I was reading on about this on the Houston Chronicle’s website and I was hoping that it would get struck down. It sort of like waiting to see the results on it. I get back in and the Blocking of the moratorium is on the top of Chron.com. I see that this is a ruling on Hornbeck Offshore Services of Covington,LA and not the amicus brief from the State of Louisiana. I figured that the facts from Hornbeck where overwhelming as to kill this moratorium.

    • http://www.thehayride.com MacAoidh

      …and the ruling doesn’t really mention the amicus brief much. Hornbeck’s lawyers won this all by themselves.

      Heroes. All heroes.

      • Richard Mullins

        That would be Diamond Offshore case here in Houston. Are you hearing anything about in Baton Rouge or New Orleans? It’s been mentioned a few times in the Houston Chronicle and it’s that they have as much of a strong case as Hornbeck.

        • http://www.thehayride.com MacAoidh

          …but I’ve been wrapped up in what’s been going on here and didn’t pay much attention.

          A double whammy is fine by me. Either way, I can promise you the Obamoratorium has zero shot at making it through the 5th Circuit. The Hornbeck ruling is 22 pages of pretty clear legal and factual reasoning for why the president is all wet.

          I’d like to say it’s 22 pages of cogent and ruthless disdain for Ken “All Hat” Salazar, too.

          Like I said, we got this.

          This was Vitter’s quote after the ruling, which had me on the floor laughing:

          “I have great respect for Judge Feldman, whom I know personally. I applaud his decision, which recognizes that the president’s powers are certainly not unlimited and that this moratorium is wreaking havoc on jobs in Louisiana.”

          GET OUTTA MY SANDBOX, BARRY!

          • Richard Mullins

            the lefties just hate it and the hate the judges as well. 5th Circuit is known as the place to lose for a anti business case. Whither its San Antonio,Houston,Dallas,Shreveport or New Orleans, it’s all the same. Judge Atlas is going to put the next bit of hurt on Obama. They picked the wrong place to mess with. If you want things your way, try the 2nd Circuit you lefties.

          • http://www.thehayride.com MacAoidh

            …realized that when you try to shut down Louisiana’s economy by fiat you’re going to run up against a bunch of Louisiana judges on the federal bench who don’t have any particular use for you or your bullshit policies.

            This is his Waterloo. It’s the first legitimate score against this White House fraudster, and it won’t be the last. He’s on the run now; mark my words.

          • Richard Mullins

            will make some very mad people and they might point their guns on you. The shrimpers are a tame crowd.

  • Castor

    I?m not a lawyer, but if Obama overstepped his authority by declaring a blanket moratorium on everybody in deep water of the gulf, it makes sense that the people affected by this armed with the fact that no violations could be proven against the other drillers, should seek and obtain a remedy from the court.
    Having not read the wording of the decision, I may be wrong by looking at the case this way, but I do applaud the good fortune of the people who won?t lose their jobs.

  • http://www.twitter.com/AveSharia evanm

    I can’t wait for Barney and Nancy’s “evil activistJudgeCon” speeches without a peep about passing an *actual law* imposing the drilling ban.

  • renny

    Technically, some wells in progress would never be able to resume after six months, due to lack of progress and maintenance in between, jobs having fled the venue, and money having moved out of the state and country, also.

    little o has to argue his edict is needed to cover an immediate and overwhelming emergency, but we already know his orig. 7 experts did NOT conclude that all drilling should stop. That policy conclusion was an addendum by Salazar to please rabid enviros.

    Unfortunately, every move in the US now has to be adjudicated and various decisions will always sway with the character and personality of the sitting judge. I am going to guess, however, that whatever circuit court covers this case, it is not a lefty CA Ninth Circuit clone.

  • Richard Mullins

    aka The second gut punch to Obama. Its being here this afternoon and the case that Diamond Offshore seems as strong as the Hornbeck case. I’m not a lawyer but it looks really good for Diamond Offshore and bad for the government. Oh well, 2 loses in the same week is going to hurt.