Court Reins In Imperious President

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On Tuesday the US District Court Judge Martin Feldman issued an injunction against the Obama Administration, prohibiting it from enforcing its moratorium on all “deep water” drilling in the Gulf of Mexico.

The moratorium had stopped work on 33 wells currently being drilled by companies other than BP, even though none of those other wells or companies have had any safety or oil leak incidents. It had also suspended several pending permits for additional drilling projects.

Some relevant statistics cited by the Judge include:

• There are now 3,600 drilling structures in the Gulf.
• Oil from Gulf operations accounts for 31% of total domestic oil production
• The Gulf provides 11% of domestic natural gas production
• 64% of active leases are in deep water, over 1,000 feet.
• At least 19 other companies, aside from BP, operate deepwater drilling rigs in the gulf.

While the President has talked about a six month moratorium,  it could continue for years because it is based not on anything the drilling companies might be able to do, but upon completion of bureaucratic processes within the government.

Secretary of The Interior Ken Salazar had based the sweeping moratorium on a report by a commission that investigated the oil spill and recommended various regulatory changes.  But the bureaucracy has yet to act on any of those recommendations a process that could take months or even years

The moratorium is essentially a political action, designed to convince voters that Obama has taken some concrete action, and is not really based on the findings in the report.  Judge Feldman noted that:

…the report makes no effort to explicitly justify the moratorium:  it does not discuss any irreparable harm that would warrant a suspension of operations, it  does not explain how long it would take to implement the recommended safety measures.

The court is unable to divine or fathom a relationship between the findings and the immense scope of the moratorium.  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 Judge noted also that the report fraudulently claims that the moratorium was recommended by “seven experts identified by the National Academy of engineering.”  Those very experts have publicly protested that they do not agree with the blanket moratorium, a recommendation that was added to the report, without their knowledge, after their “final review.”  Some of the experts have gone so far as to say the moratorium actually increases the risk of another spill.

The Judge found that oil drilling operations in the gulf are supported by:

…a vast and complex network of technology, assets, human capital and experience.  Indeed, an estimated 150,000 jobs are directly related to offshore operations.

The all-inclusive moratorium puts all those jobs at risk and would likely permanently end many of them.

The law permits effected companies to sue a government agency on the grounds that a regulatory decision is “arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with the law.” The court must determine if the agency demonstrated a rational connection between the facts and the decision to impose a moratorium.

The Judge found that the Obama Administration, in the person of Interior Secretary Salazar did act capriciously and did not demonstrate a rational connection between the facts and the decision to ban all deepwater drilling.  the only justification was am unsupported fear that there could be another blow out.

Judge Feldman commented on some test data provided by the government:

If some drilling equipment parts are flawed, is it rational to say all are? Are all airplanes a danger because one was? All oil tankers like Exxon Valdez? All trains? All mines?  That sort of thinking seems heavyhanded, and rather overbearing.

The Judge also commented on the government’s assertion that all deep water drilling must stop because its own regulatory agency is incompetent.

The Court recognizes that the compliance of the thirty-three affected rigs with current government regulations may be irrelevant if the regulations are insufficient or if MMS, the government’s own agent, itself is suspected of being corrupt or incompetent.  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.

UPDATE:  The Administration announced its intention to appeal this ruling.  Press Secretary Gibbs:

The president strongly believes, as the Department of Interior and the Department of Justice argued yesterday, that continuing to drill at these depths without knowing what happened is — does not make any sense.