BP Oil Disaster

US Climate Inaction: Blame Dick Cheney

In one of my earliest blog posts ever–one I’ve lost somewhere–I grappled with why the Bush Administration would choose their Iraq adventure in the face of Peak Oil and climate change.

Why, at the time the US enjoyed its greatest relative power, after Dick Cheney had fought his earliest battles to dodge congressional oversight with his energy task force to study declining readily explotable oil and its alternatives, would the Bush Administration expend America’s hegemonic power in an illegal invasion of Iraq?

This post, asking whether the US refuses to do anything about climate change because it will affect the US relatively less than it will affect other countries, reminded me of that post I wrote years ago.

What if the leaders of the United States — and by leaders I mean the generals in the Pentagon, the corporate executives of the country’s largest enterprises, and the top officials in government — have secretly concluded that while world-wide climate change is indeed going to be catastrophic, the US, or more broadly speaking, North America, is fortuitously situated to come out on top in the resulting global struggle for survival?

[snip]

What prompted me to this dark speculation about an American conspiracy of inaction was the seemingly incomprehensible failure of the US — in the face of overwhelming evidence that the Earth is heating up at an accelerating rate, and that we are in danger of soon reaching a point of no return where the process feeds itself — to do anything to reduce either this country’s annual production of more atmospheric CO2, or to promote some broader international agreement to slow the production of greenhouse gases.

The conclusion to that 8 year old post–one I still think is valid–is that in the face of both Peak Oil and climate change, Cheney committed the US to doubling down on the source of its hegemonic power in the belief that by retaining hegemonic power for this period of transition out of oil and into alternatives, it would retain hegemonic power thereafter.

Rather than invest the trillion dollars squandered on Iraq (or even the hundreds of billion they had to know it would cost) to make the US energy self-sufficient and lead the world in climate response, Cheney instead chose to seize the largest source of readily exploitable oil, in the process providing an alternative swing producer to the Saudis, whose citizens and funds attacked us on 9/11 (and remember, Iran was teed up to be overthrown next). By choosing the oil route, I figured, Cheney also chose the route that supported relative unilateralism rather than the cooperation that a real climate change response would and ultimately will require.

So I don’t so much think the US has decided it will ride out climate change better than other nations as I think it is intent on retaining its hegemonic position of power, which has been built since 1945 on cheap oil. Sure, the US also seems to have grown comfortable with Neo-Feudalism in the last decade, meaning the elite will happily live in their compounds protected from the instability that climate change will and already has unleashed. And the Global War on Terror will morph unnoticeably into a global counter-insurgency to protect those Neo-Feudal bastions.

But ultimately, I think, this country’s elites have decided they must retain their grasp on power no matter what. And that power rests on oil.

And don’t get me wrong. While I think Cheney fully understood the alternatives presented by this choice and made it for the rest of us, I’m not saying Democrats generally or Obama specifically are innocent. Consider Obama’s unwavering focus on energy independence, which he often cloaks in a false concern for climate change. US power is currently built off a death embrace with the Saudis. But as news reports increasingly–if prematurely–tout, we’re headed for Saudi-level targets of production. That will free us from the troubling demands the Saudis make, shore up our currency, but also keep us precisely where we are, relying on cheap oil to drive our economy and power. That is the goal of Obama’s energy choices, not replacing coal with less-polluting gas. And that explains why Obama just started selling off the rest of the Gulf for exploitation.

It’s crazy, I know. But I sincerely believe there are top secret discussions that insist if we just keep hold of power during what will undoubtedly be a chaotic fifty years, then we can fix whatever mess we’ve caused in the interim. If we can just get the oil while the getting is good, I think they believe, we can adjust to what comes later. Even if the Chinese and Koreans and Europeans will have been eating our lunch in developing new technologies, I guess they believe, we’ll be able to seize them back when the time comes.

The alternative, of course, one Dick Cheney surely recognized during his energy task force, would be to invest instead in a Manhattan project of alternative energy and to dissolve our power into the cooperative structures that will be needed in the face of climate change. That was not, and remains not, a viable option for a top American national security figure.

And so we–and the rest of the world–will melt as a result.

Breaking: Panetta Equating Crude Iranian Cyberattacks with Pearl Harbor, Iran Infiltrated Aramco

Today, the NYT–serving its role as spokesperson for the Cold War against Iran–confirms what blabby Joe Lieberman told CSPAN last month: the government suspects Iran was behind a series of crude cyberattacks on US banks.

Or to put it differently, Leon Panetta wants us to be more afraid of crude DNS attacks on US online banking sites than he wants us to be of the orders of magnitude greater damage the banks cause all by themselves. Because … Iran!

More interesting is the widely reported speculation we think Iran was behind the more serious attack on Aramco.

The attack under closest scrutiny hit Saudi Aramco, the world’s largest oil company, in August. Saudi Arabia is Iran’s main rival in the region and is among the Arab states that have argued privately for the toughest actions against Iran. Aramco, the Saudi state oil company, has been bolstering supplies to customers who can no longer obtain oil from Iran because of Western sanctions.

The virus that hit Aramco is called Shamoon and spread through computers linked over a network to erase files on about 30,000 computers by overwriting them. Mr. Panetta, while not directly attributing the strike to Iran in his speech, called it “probably the most destructive attack that the private sector has seen to date.”

Until the attack on Aramco, most of the cybersabotage coming out of Iran appeared to be what the industry calls “denial of service” attacks, relatively crude efforts to send a nearly endless stream of computer-generated requests aimed at overwhelming networks. But as one consultant to the United States government on the attacks put it several days ago: “What the Iranians want to do now is make it clear they can disrupt our economy, just as we are disrupting theirs. And they are quite serious about it.”

That’s interesting not because the attack did real damage–it didn’t, because it hit the business, not the production, computers.

Saudi Aramco has said that only office PCs running Microsoft Windows were damaged. Its oil exploration, production, export, sales and database systems all remained intact as they ran on isolated and heavily protected systems.

“All our core operations continued smoothly,” CEO Khalid Al-Falih told Saudi government and business officials at a security workshop on Wednesday.

“Not a single drop of oil was lost. No critical service or business transaction was directly impacted by the virus.”

It’s interesting because the malware was introduced into the Aramco network by an insider.

One or more insiders with high-level access are suspected of assisting the hackers who damaged some 30,000 computers at Saudi Arabia’s national oil company last month, sources familiar with the company’s investigation say.

[snip]

The hackers’ apparent access to a mole, willing to take personal risk to help, is an extraordinary development in a country where open dissent is banned.

“It was someone who had inside knowledge and inside privileges within the company,” said a source familiar with the ongoing forensic examination.

Once you translate the NYT’s spin, here’s what we’re left with:

  • We’re supposed to treat cyberattacks by Iran as an existential threat, even though they expose Iran’s relative impotence in the cyber sphere.
  • We’re supposed to get panicked about computers here at home because Iran succeeded in human espionage with Aramco.

And while Panetta cries wolf over and over, the banksters and the oil companies continue to real damage he ignores.

Panetta Misses Underlying Problem with Cyberwhines

We can play a game we often play here at emptywheel with Leon Panetta’s address on cybersecurity last night. For each major attack he discusses or potential threat he envisions, there is an equivalent one that has or could easily happen without the cyber component.

Panetta talks about the Shamoon malware that hit Aramco infecting 30,000 computers.

But even more alarming is an attack that happened two months ago when a very sophisticated virus called Shamoon infected computers in the Saudi Arabian State Oil Company Aramco. Shamoon included a routine called a ‘wiper’, coded to self-execute. This routine replaced crucial systems files with an image of a burning U.S. flag. But it also put additional garbage data that overwrote all the real data on the machine. More than 30,000 computers that it infected were rendered useless and had to be replaced. It virtually destroyed 30,000 computers.

But how did that do more damage than the Richmond Refinery fire and subsequent spike in gas prices, likely caused by a corroded pipe neglected in a recent turnaround? How did that do more damage than the damage BP, Transocean, and Halliburton did when their negligence led to the Deepwater Horizon spill, which still appears to be leaking 31 months later?

Panetta talks about DDS attacks on banks that disrupted customer websites.

In recent weeks, as many of you know, some large U.S. financial institutions were hit by so-called Distributed Denial of Service attacks.  These attacks delayed or disrupted services on customer websites.  While this kind of tactic isn’t new, the scale and speed with which it happened was unprecedented.

How is this worse than the damage done by repeated flash crashes and other irregularities caused by high frequency trading? To say nothing of the damage done by reckless gambling during the housing crisis, which wiped out trillions of dollars in wealth?

Panetta talks about passenger or transport trains derailing.

They could, for example, derail passenger trains or even more dangerous, derail trains loaded with lethal chemicals.

Apparently Panetta is unaware that trains derail all the time, and even spill dangerous chemicals, often because of operational or maintenance issues.

To some degree we could continue this game indefinitely, always finding an equivalent threat to the imagined or real threat posed by a cyberattack.

But there is a logic to the game: it reveals not only that Panetta is fearmongering while ignoring the reality of equally or more dangerous non-cyber threats.

It suggests that he–and frankly, the rest of government trying to address this problem–misunderstands why corporations are not responding to the serial fearmongering about cyber. If corporations refuse to take obvious precautions against cyberthreats, but also refuse to take obvious precautions against non-cyberthreats, it suggests the problem is not the cyber component in the least.

The problem is that these corporations don’t want to–and in many cases refuse to–take obvious precautions against risk in general.

This suggests, then, that these corporations have not been given the sufficient combination of carrot and stick generally to mitigate obvious risks. And giving them immunity for cyber-negligence is likely not going to mitigate the threat reckless, negligent corporations pose to our society, whether because our enemies cause them to do things, or whether they do them of their own accord.

The problem is a culture that encourages corporations to skirt all accountability. No amount of fancy programmers are going to change that by themselves.

DOJ’s Twisted Notion of Rule of Law Is Poisoning Our Country

Yesterday, Tim DeChristopher was sentenced to 2 years and a $10,000 fine for his successful efforts to expose an improper BLM drilling auction.

At his hearing, DeChristopher rebutted the prosecution’s claim that he needed to face a tough sentence to uphold rule of law.

Mr. Huber also makes grand assumptions about my level of respect for the rule of law. The government claims a long prison sentence is necessary to counteract the political statements I’ve made and promote a respect for the law.

[snip]

This is really the heart of what this case is about. The rule of law is dependent upon a government that is willing to abide by the law. Disrespect for the rule of law begins when the government believes itself and its corporate sponsors to be above the law.

Mr. Huber claims that the seriousness of my offense was that I “obstructed lawful government proceedings.” But the auction in question was not a lawful proceeding. I know you’ve heard another case about some of the irregularities for which the auction was overturned. But that case did not involve the BLM’s blatant violation of Secretarial Order 3226, which was a law that went into effect in 2001 and required the BLM to weigh the impacts on climate change for all its major decisions, particularly resource development. A federal judge in Montana ruled last year that the BLM was in constant violation of this law throughout the Bush administration. In all the proceedings and debates about this auction, no apologist for the government or the BLM has ever even tried to claim that the BLM followed this law. In both the December 2008 auction and the creation of the Resource Management Plan on which this auction was based, the BLM did not even attempt to follow this law.

[snip]

I’m not saying any of this to ask you for mercy, but to ask you to join me. If you side with Mr. Huber and believe that your role is to discourage citizens from holding their government accountable, then you should follow his recommendations and lock me away. I certainly don’t want that. I have no desire to go to prison, and any assertion that I want to be even a temporary martyr is false. I want you to join me in standing up for the right and responsibility of citizens to challenge their government. I want you to join me in valuing this country’s rich history of nonviolent civil disobedience.

And in response, of course, the judge did lock DeChristopher away. It’s a farce given the facts of the case, but consider how it looks when, as DeChristopher invites, you consider DOJ’s other efforts to “uphold rule of law.”

Compare the damage–if any–DeChristopher’s actions did to that which BP has done. As bmaz noted in April, a year after the Macondo explosion, no one has yet been held accountable for 11 deaths, to say nothing of the physical damage to the Gulf. And as Jason Leopold recently reported, our unwillingness to heed whistleblowers has led to more damage from BP. Part of the problem, of course, is the difficulty finding a judge without a financial interest in BP.

Or compare DeChristopher’s punishment with that of Massey energy. DOJ has records that Massey faked safety records for the Big Branch mine, yet over a year after 29 people were killed, no one has been held responsible. Don Blankenship not only got to retire with $12 million, he continues to get paid by the company as a “consultant.”

Or compare DeChristopher’s punishment with that of Angelo Mozilo or Lloyd Blankfein. Between them, they had a huge role in causing Americans trillions of dollars in preventable losses. After fining Mozilo $67 million he won’t pay personally, DOJ judged that Mozilo’s actions did not constitute criminal wrongdoing, so he remains free to enjoy his corruptly gained riches. And in spite of the apparent fact that Blankfein lied to Congress last year about the ways Goldman crashed the economy, DOJ has only now begun to make motions of investigating his lies.

And consider the others who tried to expose government wrong-doing. The government spent three years trying to prosecute Thomas Drake for whistleblowing–apparently because they suspected he leaked details of the illegal wiretap program. And it is currently pursuing a strategy that may land James Risen in prison–Risen says, in retaliation for his reporting on the illegal wiretap program. Yet DOJ went to great lengths to avoid holding anyone responsible for actually doing the illegal wiretapping.

We’re about to try Abd al Rahim al-Nashiri for his alleged role in the USS Cole bombing, which is fine. But the government not only hasn’t punished his torturers, but it hasn’t punished those who destroyed exonerating evidence of his torture.

DOJ has apparently given up any pretense of supporting the rule of law. The law is a tool used to punish political protest and exposure of wrong-doing. And it is a tool to protect the corporations whose crimes do far more damage to this country.

John Robb recently predicted that after a Soviet-style collapse, our legal system will collapse.

What happens to the legal system when the US suffers a Soviet style collapse?  Answer:  It will rapidly decay.

Here’s a simple formula for this (it works for both legal systems and government bureaucracies):

Low legitimacy + slashed operating budgets = rampant corruption

Regardless of any decay in the legal system, business will still be conducted.  Small disputes will be resolved through the existing system, with graft tipping the scales or speeding the outcome.  Large disputes involving substantial wealth transfer will be something else entirely.  These disputes will be resolved through the ability of one party or the other to apply the threat of (or actual) violence to the negotiation process.

These pressures won’t only be the result of counterparties that have access or control the large mafias/gangs/militias (or corporate militaries) that will spring up during economic collapse (far larger than we’ve seen the US to date).  Threats will also be mounted by government/defense/security officials that use their government sanctioned command of violence (police, SWAT, military units, etc.) as a means to personal enrichement.

But (as his suggestion about the impunity people like Mozilo and Blankfein were given shows) he gets the chronology wrong. Aside from the bribed BP judges, it’s not corruption per se that is collapsing our judicial system. It’s the apparently conscious choice on the part of the government to void the concept of rule of law, the choice to treat political speech and whistleblowing as a much greater crime than the corporate crimes that have devastated our country.

I think DeChristopher is right: seeing his sentence isn’t going to scare anyone into cowing in the face of such a capricious legal system. Rather, it makes it clear what the stakes are.

DOJ Sits On Its Thumbs A Year After Macondo’s Mouth Of Hell Roared

It has now been, as noted at FDLNews by David Dayen, one year from the date the British Petroleum wellhead at Macondo blew out, thus killing 11 workers on the TransOcean platform known as “Deepwater Horizon” in the Gulf of Mexico.


Jason Anderson, Aaron Dale Burkeen, Donald Clark, Stephen Curtis, Roy Wyatt Kemp, Karl Kleppinger, Gordon Jones, Blair Manuel, Dewey Revette, Shane Roshto, Adam Weise

These are names you should know. These are the first, and most blatant, victims of the Deepwater Horizon explosion at Macondo. Their actual names do not quickly come to the tongue, nor are they so easy to find. In fact, you know what I had to do to find them? Go through the same process this guy did. And, still, the first link I found them at was his post. Here is a taste of his disgust, and I join it wholeheartedly:

I had to search for those 11 names; most of you may not know them. We didn’t start a war over them, they’re not under any suspicion of anything, not a board of directors of some evil corporate cabal; on the contrary, many would say they are victims of it.

….

But I found them in a story about how frustrated the families are a year later, how frustrated the region is and how all this pep talk about how things are recovering just aren’t true. And there’s plenty of stories about how BP claims to have had its best year ever in terms of safety, yet it caused the worst oil spill in history?? Lots of stories about how the CEO got a million dollar retirement package and bonuses given here and there and it’s enough to make one puke crude, much like a lot of the Gulf remains doing.

First of all, to the families, these people are not “presumed” dead Wikipedia. I know it may be a legal thing, bodies never found, no conclusive evidence, blah blah. They were killed, soldiers in the energy wars killed by friendly fire.

….

…victims of our wanton unbridled lust for oil and the greed of those that produce it. They are dead, gone forever, never to be seen or see their loved ones or live to any more potential; they are gone.

And their deaths appear to have meant little to the world. Nor did the subsequent deaths of everything from thousands of dolphins to countless species of marine life; from the deaths of the livelihoods of so many in the region to the loss of countless ecosystems.

Truer words have likely never been spoken. And that is where I want to pick up.

What could have been done to address these heinous human and ecological wrongs that has not?

Everything.

Because nothing, not diddly squat, has been done. And if the corporate powers that be in this country, and the political puppets who serve them, including Barack Obama, Eric Holder and the currently politicized Department of Justice, have anything to say about it (and they have everything to say about it) nothing significant is going to be done about BP, TransOcean, Halliburton and the Gulf tragedy, or anything related, in the future.

Like the craven and dishonest shell game that has been played by the current administration with regard to torture and destruction of evidence, the US government appears to simply be determined to shine this on with the bare minimum of faux accountability and disingenuous rhetoric to soothe the perturbed masses and maintain status quo with their partners in corporate/political domination of the Continue reading

Torture? Check. Covering Up Torture? Check. Rule of Law? Nope.

I think it was the timing of the end of the torture investigation that hurts most of all. Just days ago, Harold Koh was boasting of the Durham investigation to the UN. Then Bush started his dog and pony show, including his proud admission to have ordered up torture. All of which made today’s announcement, that no one will be charged for covering up evidence of torture, almost anti-climactic.

Of course no one will be charged for destroying the evidence of torture! Our country has spun so far beyond holding the criminals who run our country accountable that even the notion of accountability for torture was becoming quaint and musty while we waited and screamed for some kind of acknowledgment that Durham had let the statute of limitations on the torture tape destruction expire. I doubt they would have even marked the moment–yet another criminal investigation of the Bush Administration ending in nothing–it if weren’t for the big stink bmaz has been making. Well, maybe that’s not right–after all, Bob Bennett was bound to do a very public victory lap, because that’s what he’s paid for.

The investigation continues, DOJ tells us, into obstruction of the Durham investigation itself. Maybe they think they’ve caught someone like Porter Goss in a lie. But at this point, that almost seems like a nice story the prosecutors are telling themselves so they can believe they’re still prosecutors, so they can believe we still have rule of law in this country.

This inquiry started long before Obama started looking forward, not backward. It started before the White House allowed the Chief of Staff to override the Attorney General on Gitmo and torture. It started before we found out that someone had destroyed many of the torture documents at DOJ–only to find no one at DOJ cared. It started before the Obama DOJ made up silly reasons why Americans couldn’t see what the Vice President had to say about ordering the leak of a CIA officer’s identity. It started before the Obama White House kept invoking State Secrets to cover up Bush’s crimes, from illegal wiretapping, to kidnapping, to torture. It started at a time when we naively believed that Change might include putting the legal abuses of the past behind us.

This inquiry started before the Obama Administration assumed the right to kill American citizens with no due process–all the while invoking State Secrets to hide that, too.

This inquiry started before Bush and then Obama let BP get away with serial violations of the laws that protect our workers and environment, and then acted surprised when BP ruined our Gulf.

This inquiry started before Obama helped to cover up the massive fraud committed by our banks, even while it continued to find ways to print money for those same banks. It started, too, before the Obama Administration ignored mounting evidence that banks–the banks employed by taxpayer owned Fannie and Freddie–were foreclosing on homes they didn’t have the legal right to foreclose on, going so far as to counterfeit documents to justify it. This inquiry started when we still believed in the old-fashioned principle of property rights.

This inquiry started before banksters got excused when they mowed down cyclists and left the scene of the crime, because a felony would mean the bankster would lose his job.

The ACLU’s Anthony Romero reacted to this news saying, in part, “We cannot say that we live under the rule of law unless we are clear that no one is above the law.”

I think it’s clear. We cannot say we live under the rule of law.

The Wishing Well: Is Macondo the Mouth of Hell Silenced?

For the first time since Macondo, the Mouth Of Hell, first blew out in a fiery explosion on April 20, killing eleven men in the process, BP seems to have the well under control and there appears to be no hydrocarbons leaking into the waters of the Gulf of Mexico. From Alabama Live (website of the Birmingham News):

A BP official said oil stopped flowing from a well in the Gulf of Mexico at 2:25 p.m. today as testing began on a cap over the leak.

It’s the first time oil has not leaked from the well since April.

In a technical briefing, BP Senior Vice President Kent Wells said “it felt very good not to see any oil going into the Gulf of Mexico.”

“What I’m trying to do is maintain my emotions,” Wells said. “Remember, this is the start of our test.”

The procedure — known as a well integrity test — should determine whether the oil can be blocked without damaging the well.

Officials have said the cap could be used to either block the oil or move the oil to containment ships floating on the surface, until a relief well can be completed.

This is indeed positive. And if Macondo really is shut in with no leakage and integrity issues evidencing themselves, BP is, for once, due some congratulations.

Still, I have a nagging question on the integrity of the well that has neither been answered to date nor put to rest by the seemingly joyous news today. Namely, it is a given from the way it occurred, not to mention subsequently admitted by Thad Allen and BP, that the “Top Kill” process was cut quite short due to inexplicable loss of mud in process indicating a lack of well integrity at some point (or multiple points) in the bore length. There is no reason to believe whatever caused said leakage, and fear leading to the termination of Top Kill, has magically corrected or repaired itself.

As BP’s Kent Wells properly noted, the news is good so far, but the test is not complete and the conclusion not yet drawn with finality. So, for now, let us hope and wish the well to be sealed and stable. Consider this thread to be open to any and all discussion on the Macondo experience and anything else for that matter.

[Graphic - BP: Broken Promises. Logo design by Foye 2010 submitted as part of the Art For Change BP Logo Redesign Contest and used with permission]

Are DOJ and DOI Making A Competent Legal Effort On Gulf Moratorium?

Exactly one week ago, in a post entitled Judicial Ethics in the Gulf: Judge Feldman’s Conflicts and DOJ Malpractice, I related the patently obvious, and disqualifying, statutory ethical conflicts on the part of the Federal judge in the Eastern District of Louisiana, Martin Feldman, who made the curious and shocking decision to stay enforcement of the Obama Administration’s six month deepwater moratorium. As I pointed out, it legally was somewhat astounding the government did not raise Feldman’s conflict at any opportunity:

With this knowledge in the public sphere at least substantially by the night after Feldman’s decision, the government nevertheless did not even mention it as a ground in their attempt to stay Feldman’s ruling at the district court level when they filed their motion to stay at the district court level late the following day. That motion was in front of Feldman himself, so maybe you could rationalize the government not raising it at that point (although I would have posed the motion to stay to the chief judge for the district and included the conflict as grounds for relief were it me).

Having predictably received no relief in their lame request for stay from Feldman, the judge who had just hammered them (not surprising), the government put their tails between their legs and made preparations to seek a stay from the 5th Circuit. Surely the government would forcefully argue the glaringly obvious egregious appearance of both conflict and lack of impartiality once they were free of Feldman and in the Fifth Circuit, right? No, no they didn’t.

When the government filed their motion for stay in the 5th Circuit mid to late day Friday June 25, a full three days after getting hammered by oiled up Judge Feldman, and after Feldman’s most recent 2009 financial disclosure had even started being released to the general public (as evidenced by the literally damning piece on it Rachel Maddow did Friday night), the government STILL did not avail themselves of the glaringly obvious argument of conflict by Feldman. Nary a peep from the fine lawyers at the DOJ on one of the most stunningly obvious arguments of judicial bias in recent memory.

Another week later, and there STILL is no peep from the government on an issue that would be critical to reinstating their moratorium if they really wanted to. But while the government lawyers refuse to zealously litigate the position they claim to support, intervenors represented a by law school clinic professor and two lawyers for environmental groups have done the work the government should have done. On Friday June 2, Defendant-Intervenors filed a Motion to Disqualify Feldman in the district trial court and properly noticed the record at the 5th Circuit.

From the D-I Motion to Disqualify:

Pursuant to 28 U.S.C. § 455, Defendant-Intervenors Defenders of Wildlife, Sierra Club, Florida Wildlife Federation, Center for Biological Diversity, and Natural Resources Defense Council (collectively “Defenders”) respectfully move this Court to disqualify itself from Continue reading

Judicial Ethics in the Gulf: Judge Feldman’s Conflicts and DOJ Malpractice

Last week Federal district court judge Matin Feldman of the Eastern District of Louisiana (EDLA), in what has become a controversial decision, overturned the six month moratorium on deepwater oil drilling imposed by the Department of the Interior. It was a legally curious decision to start with as it, on its face, appeared to be contrary to the well established standard of review.

Almost immediately from the time Judge Feldman’s decision hit the public conscience, information on Feldman’s undisclosed (at least on the case record at issue) financial ties to the oil and gas exploration industry started coming out of the woodwork. From Saturday’s Washington Post:

The federal judge who presided over a challenge to the Obama administration’s six-month moratorium on deepwater oil drilling simultaneously owned stock in an oil company affected by the ban, according to a financial disclosure statement released Friday.

U.S. District Judge Martin L.C. Feldman sold the stock in Exxon Mobil 14 days after the case was filed in New Orleans by a group of oil service firms — and less than five hours before he struck down the moratorium.

Feldman said in a statement elaborating on the disclosure that he was unaware of his holdings in Exxon Mobil and a smaller oil company until 9:45 p.m. Monday, the day before he issued his ruling.

“Because he remembered that Exxon, who was not a party litigant in the moratorium case, nevertheless had one of the 33 rigs in the Gulf, the judge instructed his broker to sell Exxon and XTO [Energy Inc.] as soon as the market opened the next morning,” according to a statement released by his chambers and reported by Bloomberg News.

Even before this latest disclosure, Feldman was criticized by environmental groups and others for not recusing himself from the case. The groups pointed to his 2008 disclosure form, which showed that he had invested in companies involved in offshore oil and gas exploration.

So Judge Feldman not only held numerous oil and gas interest stocks, but was trading them up to and including the morning of his fateful decision, and doing so out of an admitted realization that he had an appearance of ethical conflict. Feldman owned and was trading Exxon stock, a company whose Gulf of Mexico rigs were losing money at the rate of a half million dollars a day due to the moratorium, during the entire time he was assigned the case. Yet, failing to disclose his appearance of conflict on the record or recuse, Feldman nevertheless proceeded to issue a questionable decision clearly benefitting the oil and exploration industry he is so invested in.

Lest there be any confusion that perhaps Judge Feldman somehow put himself in the clear by suddenly selling off his holdings in Exxon on the morning of June 22 just hours before issuing his surprising opinion Continue reading

Obama Drilling Moratorium Overturned In Curious Court Decision

The breaking news this hour is the decision of Judge Martin L. C. Feldman of the Eastern District of Louisiana to grant a preliminary injunction to the moving plaintiff oil and gas interests and against the Obama Administration’s six month moratorium on deepwater drilling for oil in the Gulf of Mexico.

The court’s decision is here. The key ruling is:

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.
…..
Accordingly, the plaintiffs’ motion for preliminary injunction is GRANTED. An Order consistent with this opinion will be entered.

The 22 page decision is quite thorough in detailing the applicable law and standards of review. The Judge Feldman proceeds to blatantly disregard and violate the very standards and law he has laid out. It is really quite remarkable. Here, from his own decision (p. 11-12), is the scope he is supposed to be operating under:

The APA cautions that an agency action may only be set aside if it is “arbitrary, capricious, an abuse of discretion, or not otherwise not in accordance with law.” 5 U.S.C. §706(2)(A); see Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971). The reviewing court must decide whether the agency acted within the scope of its authority, “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Overton Park, 401 U.S. at 415-16; see Motor Vehicle Manf. Ass’n of the U.S. v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 42-43 (1983). While this Court’s review must be “searching and careful, the ultimate standard of review is a narrow one.” Overton Park, 401 U.S. at 416; see Delta Found., Inc. v. United States, 303 F.3d 551, 563 (5th Cir. 2002). The Court is prohibited from substituting its judgment for that of the agency. Overton Park, 401 U.S. at 416. “Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).

The key language is that an agency decision such as entered in this case can be set aside ONLY Continue reading

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bmaz RT @petersuderman: Costco brand bourbon is, in fact, totally decent. http://t.co/1rhMoW3kH6
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bmaz @Ali_Gharib Hey, we liveblogged the first one at Emptywheel!
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bmaz @Pachacutec_ Probably dreaming of Eli Manning completing 70% of his passes for the season. Ha ha ha ha ha ha ha!
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bmaz RT @Ali_Gharib: If we cut aid to Israel, we could get higher-priced strippers for our sting operations.
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bmaz @Ali_Gharib Fantastic flick!
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bmaz @normative Shocker. Or, you know, not. Criminal defense attorneys been saying this as long as I have been a lawyer.
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bmaz @erinscafe Math is hard.
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JimWhiteGNV Every New York restaurant for the next ten years will be running a daily special of shark fin soup. #Sharknado2TheSecondOne
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JimWhiteGNV Finn does a Slim Pickens! #Sharknado2TheSecondOne
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JimWhiteGNV Peasants with pitchforks in the streets of New York! Love it! #Sharknado2TheSecondOne
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JimWhiteGNV RT @ThunderLevin: He found a chainsaw! All is well! #Sharknado2TheSecondOne
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July 2014
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