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 if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”. And the general standard in appellate courts on administrative reviews on abuse of discretions claims is that ANY relevant evidence in the record below that could support the decision is sufficient and it must be upheld.

Shockingly, Judge Feldman then goes on, in pages 18-20 to delineate, in fine detail, just such a “rational connection” that more than constitutes a sufficient basis for the agency decision in this matter:

Of course, the present state of the Administrative Record includes more than the Report, the Notice to Lessees, and the Memorandum of Moratorium. It includes a great deal of information consulted by the agency in making its decision. The defendants have submitted affidavits and some documents that purport to explain the agency’s decision-making process. The Shallow Water Energy Security Coalition Presentation attempts at some clarification of the decision to define “deepwater” as depths greater than 500 feet. It is undisputed that at depths of over 500 feet, floating rigs must be used, and the Executive Summary to the Report refers to a moratorium on drilling using “floating rigs.” Other documents submitted summarize some of the tests and studies performed. For example, one study showed that at 3000psi, the shear rams on three of the six tested rigs failed to shear their samples; in the follow up study, various ram models were tested on 214 pipe samples and 7.5% were unsuccessful at shearing the pipe below 3000psi. How these studies support a finding that shear equipment does not work consistently at 500 feet is incomprehensible. 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 heavy-handed, and rather overbearing.

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. 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.

So, in short, Feldman correctly sets the standards he must follow in his review, and then blows by and around every one of them. Feldman in one breath, and out of one side of his mouth says “the Court cannot substitute its judgment for that of the agency” and then in the next breath, and talking out the other side of his mouth does just that. Feldman may not agree with the basis for the administrative action here, he may not like it, but it is simply unfathomable that he can say there is no supporting evidence whatsoever such that there is no “rational connection” of the agency decision to the facts. It is simply absurd.

So, and I really do not like asking or suggesting these kind of questions, ever, but here it has to be done. What else could have been behind this bunk decision? Well, for one, Judge Feldman’s disclosures indicate he is invested in and tied to Transocean and Ocean Energy concerns, among others, which certainly ought to raise a red flag. The other question I have is whether or not the government’s attorneys or staff gave some informal clue to the court that they would not be upset in the least if the court were to rule against them. There are lots of ways to accomplish this and, yes, it does occasionally occur. I have no idea or evidence that is the case here; but this is simply an inexplicable decision to the best of my experience. Something funny happened on the way to the forum, that is for sure.

image_print
88 replies
  1. cbl2 says:

    fyi – via twitter feed.

    According to the most recently available financial disclosure form for District Court Judge Martin Feldman, he had holdings of up to $15,000 in Transocean in 2008. He has also recently owned stock in offshore drilling or oilfield service providers Halliburton, Prospect Energy, Hercules Offshore, Parker Drilling Co., and ATP Oil & Gas. Feldman was appointed by President Ronald Reagan in 1983.

    yeah I know, shocking :D

    http://mojo.ly/93w3WQ

    • Fractal says:

      financial disclosure form for District Court Judge Martin Feldman

      Obviously we need this year’s holdings, which somebody should be able to dig up in hard copy form in a day or so.

      While we wait, we could take a look at the rule which requires a judge to disqualify himself or herself if he or she holds stock in any corporation which is party to a case before the judge. It’s Canon 3.C(1)(c) of the Code of Conduct of United States Judges. The main Canon (rule), Canon 3, is overly general.

      Canon 3.C(1)(c) states in part as follows:

      (1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:

      (c) the judge knows that the judge, individually or as a fiduciary, or the judge’s spouse or minor child residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding.

      PDF WARNING: the official text of the Canons can be linked to from this link at the Administrative Office of U.S. Courts. Download the PDF from the link labeled “Code of Conduct for United States Judges” or you could try to jump directly to the PDF here. (My Firefox couldn’t capture the PDF, had to use Safari.)

        • Fractal says:

          Without belaboring what the Canons say, if the Judge’s holdings changed he did have an obligation to report the changes and adjust his conduct accordingly. The Think Progress posting claims he owns stock in Transocean (not a party) but the list of stocks in that same posting does not include Transocean.

          BTW, not only did the Judge recite ample rational basis for the administrative action, as you pointed out, thus refuting any conclusion that the govt was arbitrary or capricious, but he also appeared to place a burden of showing “irreparable harm” on the DEFENDANT (i.e., government) rather than on the plaintiffs. At page 4 of the court PDF, the decision states “The Report [by the Secretary dated May 27, 2010] 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.” Seems to me the DOJ team recognized this Judge had the law backwards and was likely to issue a very poorly-reasoned injunction, so the sooner they could get it out of District Court and attack it in the Court of Appeals, the better.

  2. Arbusto says:

    So was the moratorium for real, or more kabuki from ObamaCo, knowing the Court would back Big Oil. Guess we’ll find out by how quickly they file for a new hearing.

    Perhaps, if the Administration really gives a rats ass about the environment, they’ll do a fast risk analysis and require on site inspections by honest engineers/brokers of the most egregious wells first, interview employees, note documentation versus build and shut down the bad actors, instead of a blanket shutdown. What a cluster fuck.

  3. cbl2 says:

    oh sweet jesus bmaz, now I see your reference to the judge’s industry ties –
    serious face palm

  4. DWBartoo says:

    Passing strange.

    (I remember, long ago, the same comment attached to the notion of the corporate “person”… and how said notion came to be.)

    Verily, with each passing day, either the “joke” becomes more bold or else
    the ruling classes have tired utterly, ho, hum … of the ruse.

    bmaz, thank you for your insights, suppositions, and concerns.

    The larger SILENCE deafens and is all the more deadly the longer it goes on.

    DW

  5. sundog says:

    He’s just following the precedent set by the Roberts court. I think it’s called, “Stare “how the fuck did that become law? I’ll have to change that now” decisis for myself.”

    It’s no longer about precedent and fact. It’s about the longstanding right wing practice of doing whatever the fuck they want, what are you going to do about it? If it makes it to the extreme court, I wouldn’t be shocked if it’s upheld.

  6. matutinal says:

    “There is no evidence presented indicating that the Secretary balanced the concern for environmental safety with the policy of making leases available for development.”

    Yeah, the judge he says you got to get that “Fair and Balanced” going on (i.e., anything and everything gets “balanced” against the rush of “making…available” our public resources for private exploitation).

    Good to read your clear discussion of this ruling, Bmaz. ‘Tis passing strange, indeed.

  7. AZ Matt says:


    For example, one study showed that at 3000psi, the shear rams on three of the six tested rigs failed to shear their samples; in the follow up study, various ram models were tested on 214 pipe samples and 7.5% were unsuccessful at shearing the pipe below 3000psi. How these studies support a finding that shear equipment does not work consistently at 500 feet is incomprehensible. 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 heavy-handed, and rather overbearing.?

    I think this guy should fly on a aircraft with parts that fail 7% of the time. I suspect the FAA would be grounding aircrat that have problems 7% of the time.

    • bmaz says:

      The thing is, 500 feet is not the issue. Deepwater has been defined for this purpose as deeper than 500 feet (they actually put stilts/jacks on rigs that are 500 feet of less which allow direct BOP and well control on the rig as opposed to remote control. The psi increases as you get deeper (Deepwater Horizon had about 2400 psi at its depth). The data was that at high pressure, 3 out of 6 failed. That is not 7.5 %, that is 50% of the ones really addressed by the moratorium. Not to mention the litany of evidence in the record of mismanagement and failure of oversight that had to be reevaluated and rechecked on every well under the penumbra of the moratorium. There was plenty of support/basis for the decision in the record.

      • thatvisionthing says:

        Did you see this?

        This Is Depressing
        by slinkerwink
        Tue Jun 22, 2010 at 08:08:48 PM PDT

        ThinkProgress reports that the wellhead is potentially in danger of tilting over, due to its weight, which has near-apocalyptic ramifications for the entire ecosystem of the Gulf of Mexico [as if the oil spill itself already hasn’t done enough damage]:

        Tilt was 3 degrees on June 10, 10-12 degrees now. Update says questionable report, waiting on BP for info…

        Can that deck chairs judge reverse the law of gravity?

  8. jdmckay0 says:

    Hard to fathom… utterly bizarre.

    BBC has comments from various drilling execs from today’s World National Oil Companies Congress confab. Steve Newman, Tony Hayward’s standin at the event, from BBC:

    BP would re-assess how it balanced risks, but he also insisted that the leak in the Gulf of Mexico would not lead to deep water production being halted.

    It would be a mistake, he insisted, to create an environment in which investment in deep water would become impossible.

    “The world does need the oil and the energy that is going to have to come from deep water production going forward,” he said.

    “Therefore, the regulatory framework must still enable that to be a viable commercial position.”

    BP would access risk mngment? Geezus… when? What about coming clean on this one first.

    Houston Chron as more detailed comments here. I dun’o, this reads to me like top down washout of all in-your-face relevant facts beneath it.

    Unbelievable.

    • billthechowchow says:

      Definitely not in criticism, but words are important. Fathom is a unit of marine measurement equal to six feet. Samuel Langhorne Clemens’ pseudonym Mark Twain marked a depth of 12 feet. If there be irony in exposition, let there be irony. Sam and Mark and Tom and Huck would appreciate it.

  9. Bluetoe2 says:

    Give the U.S. public their oil. Give them their wars. Let them live on the streets with no work and little prospects. Let the U.S. fall further and further behind the rest of the advanced world. They will be content with dreams of past glory to sustain them.

    • JamesJoyce says:

      “The plaintiffs have established a likelihood of successfully showing that the Administration acted arbitrarily and capriciously in issuing the moratorium.”

      Protect the slave-owners?

  10. ratfood says:

    Could this decision be rendered moot by an act of Congress? Assuming they have any desire to bolster the moratorium by passing legislation, an assumption I find myself unwilling to make.

    • reddflagg says:

      Could this decision be rendered moot by an act of Congress?

      A: Yes. Q: Will Sanstesticles find the balls to push Congress to do so? A: I just answered my own question.

    • cwolf says:

      Of course!

      Public hearings are optional for congress.
      A bi-law could be passed by both houses in a day or 2 if they got on it.

      If that does vote comes around,
      Feldman’s sour ruling could become Sweet Lemonade.

  11. TalkingStick says:

    There it is. This judge has ruled that the government, even the President, cannot act in an emergency to protect the environment from corporate spoilers.

    • PJEvans says:

      Excuse me, that article is full of sh*t.

      DWH only went down 18000 feet from the platform.

      • bmaz says:

        There have been very much unconfirmed rumors they have actually drilled down significantly further than they have admitted; although I think 22,000-23,000 is the deepest I have seen discussed. Don’t necessarily know that such reports are credible, but they are out there.

      • melior says:

        Excuse me, that article is full of sh*t.

        Indeed, that’s why I stopped reading at

        According to the Wayne Madsen Report (WMR) sources…

  12. eCAHNomics says:

    Think O will be very pleased with this decision. We’ll see if they even bother to appeal it. Lot of winkin’ goin’ on.

  13. Hugh says:

    Are all airplanes a danger because one was?

    I wrote on this decision for my Obama scandals list. I haven’t put it up yet. Dinner calls. But the point I made was that if this was an airline accident and some major system was involved, it would be completely uncontroversial to ground all similar planes until the problem had been tacked down and resolved. Here we have one of the biggest environmental disasters in our history and Feldman essentially wants to treat it as business as usual. You have to wonder what it would take for him to see an imminent danger in deepwater drilling worthy of a second look. I think the answer is he would never find one.

    • onitgoes says:

      Yes because, Lord knows, no one’s making any money in the airline industry these days. But BigOil?? No that’s a horse of a different feather – eh?

      Someone compared this somewhere to how NASA responded when the Challenger blew up. No other missions were sent (I believe; didn’t check) until everything was checked with a fine-tooth comb. Perhaps NASA wouldn’t be so thorough these days, either. Gawd only knows, loss of life is meaningless to the uber wealthy. But still… it comes down to greed uber alles anymore. Yet the citizens don’t even blink, do they?

    • robspierre says:

      Using the figure of 30,000 commercial flights per day given at http://www.natca.org, if 7% of them lost a wing, then we would 2100 catastrophic airline crashes a day. Could anyone of sound mind who was not heavily in his cups doubt that a grounding of all planes would occur under such conditions? Especially when the hijacking and crashes of only four airliners grounded all 87000 flights per day in the US (commercial and noncommercial) after 9/11?

  14. JamesJoyce says:

    After reading this decision it is clear this judge is fucking delusional. America is in a state of servitude to corporate oil and this ruling reinforces this fact. Protect the slave-owners….

  15. Margaret says:

    It’s not strange at all when you consider how much oil stock this judge owns. It’s no coincidence that the people who didn’t like the moratorium ran to him. Link

    • Fractal says:

      consider how much oil stock this judge owns

      Margaret, Think Progress did a decent service listing the Judge’s specific stock holdings at the link you provided. Same article gave a nice link to the official court copy (PDF WARNING) of today’s decision granting the injunction, here. But notice anything? None of the stocks the Judge held in 2008 were in corporations that are parties to the case. Footnote one to the decision says the plaintiffs include: Hornbeck Offshore Services, Bollinger “entities,” Bee Mar Deepwater Vessel Cos., Chouest Shore Side Cos., Chouest Vessel Cos., Chouest Shipyard Cos.

      We might find other evidence that would have warranted a recusal by this judge from this case at this time, but so far nobody has presented any.

        • Fractal says:

          Dragon, you mean the Judge made sure ahead of time not to hold any stocks in corporations that might sue to overturn the moratorium?

      • bmaz says:

        If he owns Transocean, Halliburton and Ocean Energy, which he does, then he has a direct financial interest in whether the drilling operations they depend on for income are active and working. That, you would think, would be sufficient for the conflict provision.

  16. JohnLopresti says:

    Margonelli interview+, BP *owns* more than 1/2 of the >1,000 offshore wells in the Gulf of Mexico; most of the people living in the Gulf area are in employer employee relationship with oilco*s.
    _____
    + Sunday Show with P. Maldari June 20 2010; Pacifica. Pacifica seems to have erased the online archive already, 2 days since airing. A recent post of hers at Atlantic . Reviews of a book she wrote Oil on the Brain: Petroleum’s Long, Strange Trip to Your Tank there; title seems revised compared to book*s original website there. Evidently, she also has written for Lehrer, though on Pacifica sounded way more sensible than that fairly conservative newsmedia npR institution. I left a trailing comment on negotiate101 thread containing portions of the above, but the link I put in that other thread was imprecise, additionally, the audio appears to have been erased entirely today since I located it 9 hours ago.

    Also, I think it would be fair to apply some taxpayer Superfunding to help BP, as the laxity in MMS, which Margonelli discussed with perspicacity in the cited radio program 2 days ago, gives DoI some responsibility for lack of mandated oversight.

    I believe it was also in the Margonelli interview that there was explicit mapping of the Cheney energy taskforce having made a goal of obtaining a carveout for oilco environmental impact in congress legislation passed in ~2005.

  17. oldgold says:

    This decision stinks. How is that for legal analysis?

    To try to put this on Obama is confirmation bias on steroids.

    To some extent what has gone on in this whole matter I euphemistically attribut to Louisiana being an unusual place.

  18. marymccurnin says:

    If the Congress should pass legislation to overturn this decision the supremes will simply negate the legislation. Just watch. We are truly slaves now.

  19. tegrat says:

    Kinda like having the wings fall an airliner while it’s sitting on the tarmac and then saying “well, it would be rather arbitrary and capricious to ground the rest of those whilst we look into the matter, now wouldn’t it?”

    Insanity.

  20. john in sacramento says:

    What he’s conveniently leaving out is that deepwater drilling is an experimental technology

    He can quote this decision or that decision from whatever law books he has at his disposal but he can’t overrule the laws of science

    Something I ran across a few days ago suggests to me that the deepwater drilling is getting into dangerous territory i.e. very close to the Moho Boundary or Mohorovičić Discontinuity

    Which is

    The Mohorovicic Discontinuity, or “Moho”, is the boundary between the crust and the mantle

    Wiki says it’s anywhere from 3 to 6 miles (18,000 to 30,000 feet) below the sea surface

    In order to know how close Deepwater Horizon is to the boundary, you should know how thick the crust is (click on the second pic from the bottom). It looks as though the depth increases or decreases by 2k feet for each line, right? So where DH is, looks like somewhere between 24 and 25 k.

    How thick are the oil reservoirs? If they’re a couple thousand feet, then they’re very close to the Moho Boundary. And it’s interesting that Transocean (the rig operator) has a Mohole Project that they’ve bragged about. More here

    Anyway, it’s living-dynamic-Earth-science … not dry-old-law-book-made-up-stuff (sorry lawyers)

    And no wonder there’s so much heat and pressure at the well if it’s that close to the Moho Boundary

    • prostratedragon says:

      You know (said the never-more-prostrate prostratedragon)—

      someone somewhere earlier today said in connection with our toddlers in military command that they were really tired of seeing people who are not close to grown up running things, like armies, in this country.

      I quite agreed then. So how much more true is it in the way some are allowed to play with vroomvroom toys on and in the actual earth? Mohole! Yippeeeee! Well(!), the Mohorovicic Discontinuity is still so poorly understood that it’s characterized by what it does —cause a discontinuity in recorded seismic waves— rather than by what it itself is. That does not sound like time for commercial drilling, removal, and exploitation of whatever is down or beneath there.

      Oh, but I’m sure the Transocean folks are just doing this to give a few core samples to science.

    • PJEvans says:

      Not likely. The Moho is down a lot farther than that – you’d have to be down something like 8 kilometers under the seafloor – that’s about 25000 feet. In that part of the Gulf of Mexico, it’s probably deeper than that, maybe as much as 20 km.

      • john in sacramento says:

        Errrrm, isn’t that what I said? ;-)

        In order to know how close Deepwater Horizon is to the boundary, you should know how thick the crust is (click on the second pic from the bottom). It looks as though the depth increases or decreases by 2k feet for each line, right? So where DH is, looks like somewhere between 24 and 25 k.

        Click the second link. The map is from a Cornell Univ study

    • alanhawaii says:

      and to Greenwarrior @42: When I went to law school (before Burger, Rehnquist, and Roberts were shredding the Constitution), we learned in torts about “ultrahazardous activities,” for which an actor was “strictly liable” if there were an accident. The examples of the day were using dynamite on road projects, and stuff like that.

      So, what John says is very apropos: The deepwater drilling into the Moho Discontinuity is indeed experimental technology, and the Masters of Oil have just testified before Congress that they don’t know how to fix a problem if one occurs. So, they’ve admitted that it’s “ultrahazardous.”

      Now the problem is to fix the law – the Oil Pollution Act of 1990, which gives the operators the infamous $75 million liability cap unless there is gross negligence or recklessness, in which case the cap is removed. OPA 90 should be amended to make the operators strictly liable without caps, to bring the law back into line with the common law.

      And, of course, John is absolutely right that Marty Feldman is completely wrong to ignore that the technology is highly risky and a moratorium is essential. Judicial activism at work.

      • jdmckay0 says:

        The deepwater drilling into the Moho Discontinuity is indeed experimental technology,

        Yes, but only in 2-3% of fine tuning the technology: most of what’s done at this depth is well understood, w/very well established best practices in place.

        Big part of what makes this blowout so troubling: these practices were ignored, seemingly flippantly. And beyond that, BP is keeping knowledge of their “chain of command” in a black hole: witness Hayward’s pleading utter ignorance before congress last week as to what happened.

        Although, in fairness, would not surprise me if BP legal has advised he be kept ignorant.

        and the Masters of Oil have just testified before Congress that they don’t know how to fix a problem if one occurs. So, they’ve admitted that it’s “ultrahazardous.”

        Yes, but they filed lots of reports saying they did know how to manage it… most of which (at least those I’ve seen) were utterly made up: the effects of a major spill, the wildlife that would be affected (BP listed many which do not inhabit that region), the equipment they would have available (wasn’t there), etc. etc. etc….

        Practically nothing surprises me any more, but how that cannot be fraud… I dun’o.

  21. Jo Fish says:

    Marty Feldman? Loved him in Young Frankenstein. Oh, wait… you mean this guy isn’t wall-eyed and acts the fool? My bad.

    Hey Marty, I’ll take the blonde, you take the one in the toiban…

    Idiot.

  22. greenwarrior says:

    The descent of the rule of law is happening so fast. They keep drawing the noose tighter and tighter. There are regulations where there should be none (material support to peace groups) and no regulations where there should be.

  23. Mason says:

    Something funny happened on the way to the forum, that is for sure.

    I agree that it’s highly probable that the government communicated with the judge in some backchannel fashion to let him know that the drilling ban was a purely political decision that the president regrettably was forced to make and the president would be delighted if the judge would grant the preliminary injunction, a decision the president cannot support publicly, but will appreciate privately.((( wink ))) ((( wink )))

    The fact of the matter is that every MMS/DOI decision to permit deepwater drilling for oil in the now endangered Gulf of Mexico was arbitrary and capricious because no good faith detailed environmental impact statement has ever been filed regarding the risks and perils of drilling deep water wells, and as we now know, the companies lack the ability, technology, and experience to quickly control and cap a runaway well. In addition, as BP’s remarkably inept efforts to clean up and protect the environment have conclusively proven, the oil companies also lack the ability, technology, experience, and financial ability to clean up the messes they create. In fact, their efforts have caused more harm to the ecosystem and endangered all of its lifeforms, including some of them to extinction.

    Not only have permits been issued without a comprehensive environmental impact statement, but there has been no independent comprehensive agency review of the efficacy and safety of deep water drilling. Make no mistake: to proceed with more deep water drilling with so many dangers and unknowns that are capable of causing permanent and irreparable harm to the local environment and possibly the entire world and all of its life forms is sheer insanity.

    No one should have any sympathy for the oil companies because they did not do what they were required to do. Although they may lose a million or more dollars per day on multiple month long rental contracts with Transocean to lease their oil rigs, they deserve to lose that money because they deliberately gamed the system to get their permits.

    Unfortunately, there are thousands of employees who will lose their jobs through no fault of their own, if the moratorium were to remain in effect, but this too is loss that the oil companies should be required to compensate because the income from lost jobs is another foreseeable consequence of gaming the system.

    Nothing has changed. Obama is just as determined to drill, baby drill as he is determined to avoid personal responsibility for his decisions and actions by playing eleventy dimensional political games that long stopped fooling anyone.

    • bmaz says:

      I believe most all of what you just said is, in fact, contained in the 30 day review report and materials that is part of the agency record. Exactly why this decision is so absurd.

  24. cwolf says:

    Just wondering… Why is this matter in a regional federal court district?
    Many states and citizens from other districts are/will be victims.
    The triggering events occurred 40 miles at sea. Not in any State.
    Would not a DC federal court be the more proper venue?
    Aren’t they in a better position to deal with this kind of matter?

    After all, the Entire Country is being affected.

      • cwolf says:

        I wasn’t suggesting it was improper or that it lacked jurisdiction,

        All I’m saying is that for reasons of Judicial economy and expediency – it might be better to locate further federal proceedings in DC.

        • bmaz says:

          I don’t think there is a basis for that on this case. That argument was not asserted by the government in the trial court (nor did the government challenge a judge with the appearance of clear conflicts under the rules) and it is now waived; the appeal will be to the 5th Circuit and that is that.

          • cwolf says:

            …and it is now waived; the appeal will be to the 5th Circuit and that is that.

            Yes, it is now waived,,, in this action.

            Going forward however, is appears that what we need is a court in DC run by a Judge Sirica type to handle, at least the federal criminal prosecutions, if not all Blob Petroleum related federal proceedings.

  25. Fractal says:

    direct financial interest in whether the drilling operations they depend on for income are active and working

    By that standard, I guess he would be obligated to recuse if he held stock in any enterprise involved in offshore drilling. That would be a “financial interest in the subject matter in controversy” to use the language of the Canon. I don’t know whether that interest must be one that “could be affected substantially by the outcome of the proceeding” in order for recusal to be required. Or whether the “substantially” standard applies only to “any other interest” besides financial interest.

    The Canons are not mere litigation tactics, however. If he violated the Canons, it is irrelevant whether any party to the litigation objected or “suggested” his recusal. The Admin. Office must enforce the Canons even when, or especially when, parties to cases are afraid to do so or fail to do so.

    I don’t think he was obligated to recuse, but more & fresher evidence could change my mind.

    • bmaz says:

      I can’t say I am positive either yet. I will say this, from what I do know however, I would expect a judge in such a circumstance to, at a minimum, disclose to counsel and parties on the record and ask if there were concerns. Heck it is possible he may have done so; but you would think that would have been reported if so. I dunno; there is a serious question here; whether there is anything more is yet to be seen.

  26. jbjd says:

    bmaz, please, next time, leave out the yellow highlighting. I did. That is, I started out reading your version of the court’s decision but then, unable to reconcile a neutral reason for determining this section was worth highlighting, versus that; I accessed a plain print version, relying on my analytical skills to discern the court’s reasoning. Then, I copied a couple of sections of that decision which stood out as perhaps having a material effect on the court’s ruling; and erased any sections duplicated in the highlighted sections in the version you presented to readers on FDL. Here are the passages that survived the cut. (In other words, here’s the portion of the court’s decision you left out.)

    From the section Background:

    …In the Executive Summary to the Report,the Secretary recommends “a six-month moratorium on permits for new wells being drilled using floating rigs.” He also recommends “an immediate halt to drilling operations on the 33 permitted wells,not including relief wells currently being drilled by BP, that are currently being drilled using floating rigs in the Gulf of Mexico.” Much to the government’s discomfort and this Court’s uneasiness,
    the Summary also states that “the recommendations contained in this report have been peer-reviewed by seven experts identified by the National Academy of Engineering.” As the plaintiffs, and the experts themselves, pointedly observe, this statement was misleading. The experts charge it was a “misrepresentation.” It was factually incorrect. Although the experts agreed with the safety recommendations contained in the body of the main Report, five of the National Academy experts and three of the other experts have publicly stated that they “do not agree with the six month blanket moratorium” on floating drilling. They envisioned a more limited kind of moratorium, but a blanket moratorium was added after their
    final review, they complain, and was never agreed to by them. A factor that might cause some apprehension about the probity of the process that led to the Report….

    From the section Arbitrary and Capricious:

    …The Report seems to define “deepwater” as drilling beyond a depth of 1000 feet by referencing the increased difficulty of drilling beyond this depth; similarly, the shallowest depth referenced in the maps and facts included in the Report is “less than 1000 feet.” But while there is no mention of the 500 feet depth anywhere in the Report itself, the Notice to Lessees suddenly defines “deepwater” as more than 500 feet….

    From the section Arbitrary and Capricious: (Note: Only the words I highlighted in bold had none of your yellow highlighting; however, I felt this omitted section was material to the understanding of the court’s reasoning.)

    …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. 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.

    • bmaz says:

      Thanks for the help. However, the reason those sections were not presented is that they were irrelevant to the standard at issue for the exact reasons and grounds that were cited in the main post. The consideration by this judge was not to be, and legally cannot be, any balancing contest, irrespective of his ambiguous and spurious dicta to the contrary. If there was any competent evidence in the agency record, the decision has to be upheld. There most certainly was cognizable evidence in said agency record (frankly there was a ton of it) and the decision had to have been upheld. You are suggesting an incorrect paradigm for the consideration.

      • jbjd says:

        I specifically matched the criteria listed by the court in case law cited, to support a finding that the government’s actions were capricious and arbitrary. For example, no causality was established between the stated reason for the government’s decision and the facts alleged to have been the basis of that decision; and no showing was made that the government considered alternative means (less onerous on Plaintiffs) to effect its desired results.

        Specifically, 500 (feet) is not the same as 1,000; and experts did not support a 6-month moratorium as stated in the executive summary of the report that was the basis for the government’s decision. Discrepancies like these persuaded the court, when it comes to issuing a blanket 6-month moratorium on all deep water oil drilling; the government failed to establish even a rational cause (and effect).

        • bmaz says:

          And what I am saying is that, to my understanding, there is contrary evidence in the record that could support those claims. On an agency appeal, the judge does not get to evaluate the record, rebalance the record, or go behind the record. There was cognizable evidence in the record to support the decision and the judge is simply full of shit; Feldman substituted his judgment for that of the agency; he cannot do that. The thought that there was not some evidence in the record in these regards is directly belied by the judge’s own words in his opinion. His own language and citation to the record flies in the face of his conclusions.

          • jbjd says:

            Okay, now I think I understand why you responded to my criticism of your evaluation of the court’s decision by accusing me of “suggesting an incorrect paradigm for the consideration.” That is, in relation to your analysis, you are now saying, “to my understanding, there is contrary evidence in the record that could (emphasis added) support those claims.” And I am basing my analysis on evidence in the published record. (By the way, the “jd” is not just for show. http://jbjd.wordpress.com)

            • bmaz says:

              But the general standard is any evidence that could support the decision which, under the APA is stated to be any evidence that indicates a “rational connection between the facts found and the choice made”. There are more than sufficient facts to minimally meet that burden just in Feldman’s recitations (irrespective of his conclusory statements to the contrary). I also am basing my analysis on the published record, and I have a JD too. I have also represented numerous plaintiffs in appeals to the trial court from a plethora of agency decisions (although, granted, never from an APA matter in the 5th Circuit); what I see here flies in the face of every ounce of my experience. Your mileage may vary. Just saw Jeff Toobin on CNN saying the same thing a bit ago, so I am not exactly alone on this. In fact, I don’t think I am out on any limb at all, and will stick completely with what I have written.

                • bmaz says:

                  Well that is simply brilliant argument. At least my reference to Toobin was on point; you however are spewing bunk. Have a nice night.

                  • jbjd says:

                    No, not at all. I provided the link to the headline story in HuffPo so as to support my premise that, historically, confronted with conduct Mr. Toobin deemed unfavorable to Mr. Obama, he can go off half-cocked. (Recall at the time he announced to his on-air audience that Ms. Clinton’s refusal to concede the D nomination for President to Mr. Obama was “deranged narcissism” neither candidate had accumulated the requisite number of pledged delegates, notwithstanding the manipulation of the delegate count on May 31 and the fact more popular votes had been cast for Ms. Clinton than for him.)

            • robspierre says:

              I am not a lawyer, much less so august a figure as a JD. So please explain: by your reasoning, was the post-9/11 grounding of all air traffic in the US capricious and unreasonable?

              * It was very costly and inconvenient for airlines, business travellers, vacationers, and a bunch of Saudi nationals that suddenly wanted to leave for some reason.

              * As near as I know, the government never presented any solid evidence to suggest that the grounding was necessary to prevent additional, imminent attacks.

              * As I noted a minute ago, only 4 of the 85000 flights in the US were affected by terrortism–less than 0.005%.

              So, had an airline or perhaps a Saudi construction company had the audacity to seek an injunction, would a judge have been justified grannting one and thereby overruling the judgment of the President, FAA, and DoD?

              Just wondering. These things can be confusing to us folk that are not JDs.

          • jdmckay0 says:

            wondering if this judge is a FEDERALIST member/participant… aka YOO, ROBERTS, SCALIA et’al. He sure fits the profile.

            • HardheadedLiberal says:

              Perhaps a sympathizer, but he is much too old to be part of the Federalist movement. See this webpage for his bio:

              http://www.aaas.org/spp/case/feldman.htm

              Looks more like an old-line business Republican from the Eisenhower era who shares the business Republican distaste for government regulation of business and sees no reason to let strict adherence to the legal standards trump his distaste for regulation.

              As the lawyers in the thread will understand, he was Order of the Coif at Tulane Law School, and his professional affiliations are distinguished, so this is no dummy ideologue.

              • bmaz says:

                No, he appears to be a respected judge, but very much an old school big, and big oil, business sympathizing Republican type of judge. There are a lot of those down in the Gulf districts.

  27. timbo says:

    The fix is in. They’ve got a judge that will ignore the factual evidence and permit oil drilling to continue…another win for the third branch of graft.

  28. Mason says:

    Some people might read Judge Feldman’s decision and conclude that justice was done because all of the parties benefited and no one was harmed. With all due respect to the learned one wearing the robe, however, his decision is misinformed, shortsighted, and gravely mistaken. It ignores the victim most harmed by the hopelessly captured, compromised, and failed agency process that BP mocked with its scissor and paste boilerplate application that no one at MMS ever bothered to read. If they had, they would have realized that it was bullshit and denied BP’S application due to the references to walruses and sea lions that do not live in the Gulf of Mexico.

    The victim to which I refer is Gaia, our mother, and all of the spirits and life forms that she cradles in the Gulf of Mexico. She bleeds black gold and methane gas that is killing the gulf and slowly strangling the life forms it supports. Corporate greed and human gross negligence caused the injury that will not stop bleeding. We do not yet know the details of what went wrong, why it went wrong, and what we must do to make certain this never happens again. We cannot even say with any degree of certainty that we as a species will survive this bleeding wound. To set aside the deep water drilling moratorium without the answers to these questions invites another horrific disaster and incomprehensibly vast suffering just to save the bottom line for BP and the other oil companies that are Gaia’s parasites.

    I believe we need to recognize that we are the protectors and keepers of Gaia, the fabled mythical garden of spirit and life that we inhabit. She is not a dead thing to be sliced, diced, and exploited for financial gain. She is holy and alive.

    No one spoke for her in Judge Feldman’s courtroom. She was reduced to a thing with no significance or feelings and ignored.

    We must change that. She should be entitled to representation by court appointed counsel compensated at public expense and accorded equal rights under law. After all, if corporations are persons with legal rights, how can Gaia, the victimized host of so many parasitic corporations be denied personhood.

    We must make it so.

  29. jbjd says:

    Do you recall that the emergency grounding of airplanes, some of which at the time were used as weapons against people and buildings, killing more than 3,000 people; only lasted 2 (two) days? Even assuming a court case you describe could have been heard within that time, on what basis could the Plaintiffs have argued, this decision is capricious and arbitrary; or contrary to law?
    http://www.time.com/time/nation/article/0,8599,174912,00.html

Comments are closed.