October 19, 2019 / by 

 

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 American populous. That is clearly who they are, and quite apparently who we have become.

So, what could have been the process? Well, that is pretty easily delineated. In fact, I set it out definitively on May 28th of last year. Please refer to the link to the post for a complete list of the factors, nee elements of the crimes, that were already present a year ago. It is startling to realize what was already known then; especially when compounded with what is known now. The only difference today is that we can definitively add the United States government, and the administration of Barack Obama, to the queue of “Criminals in the Gulf“.

Last May I wrote:

As a direct and proximate result of the above described reckless, wanton, willful, and grossly negligent conduct, eleven men are dead and the biggest environmental disaster in history has been unleashed on the fragile and critical Gulf of Mexico, threatening the lives and livelihoods of untold numbers of American families. Some of the toxic death foisted upon the environment cannot even be seen because it lurks in deep giant underwater plumes miles wide by miles long.

The applicable criminal provisions of the Clean Water Act are set out in 33 USC 1319….The Federal criminal provisions for negligent and reckless homicide (statutorily known as manslaughter) are contained in 18 USC 1112….

….

It is hard, if not impossible, to find any way that the conduct of both BP and its key decision making officials responsible for the Deepwater Horizon catastrophe, and corresponding mass loss of life, do not fit within the ambit of the above crimes. Why has the Obama Administration and its DOJ not acted? Why is there not a dedicated criminal investigation open and securing critical evidence?

As best as can be ascertained, the only real DOJ Main assets sent to the Gulf scene are Tony West and Ignacia Moreno, the talking heads for the Civil Division and Environmental Divisions respectively, a tasking that screams of a total coddle the petroleum industry and manage the fallout move, not a get tough criminal consideration.

The DOJ could also be using the Texas Refinery Fire probation case that BP is still under the court’s jurisdiction for from their 2007 felony conviction as an easy investigatory and prosecutorial tool; but the DOJ will not even address the thought, much less act on it.

Why?

The Obama Administration and its DOJ owes the citizens a better effort than they have mustered to date. It is funny they are out trying to prosecute Guantanamo defense attorneys for doing their jobs and are still hell bent to persecute inconsequential marijuana crimes, but have no burning desire to go hard after BP, the biggest environmental criminal in history. How can that be?

In addition to the above manslaughter and general CWA crimes clearly present, 33 USC 1319 contains the criminal provision of the Clean Water Act. Specifically, 33 USC 1319(c)(1)(A) and 1319(c)(2)(A), through their reference to multiple other provisions, but most notably 33 USC 1312, make the toxic contamination of navigable waterways and wetlands a crime.

So, what has transpired in the way of criminal prosecution now that we have reached the one year anniversary of Macondo, the Mouth of Hell, rearing its head and opening its maw?

Not a thing. The US government and the Administration/DOJ of Barack Obama is just stringing it out and propping up the status quo and corporate interests such as BP. Seriously, I have been in the criminal law business for two and a half decades, and you literally almost have to fight to not be prosecuting BP for the criminally negligent, if not recklessly indifferent, deaths of the eleven lost souls on Deepwater Horizon.

Like with torture and the financial meltdown, the criminal activity is so obvious you have to consciously want to “look forward” and want to not prosecute in order to not do so. And that is, apparently, just exactly the case with the Obama Administration and the Holder Department of Justice to date. For the better part of a year, DOJ pitched the bogus meme there was a team working diligently on the BP Oil Spill. But that “task force” was led by Tony West and Ignacia Moreno, a couple of talking head tailored suits out of DOJ Main. Knowledgable former EPA criminal investigators pointed out early on, it seemed just for show and, sure enough, very little appears to have resulted from all those months of the DOJ Deepwater Horizon investigation. In fact, the only notable thing which appears to be resulting from the so called “criminal investigation” is that it is being used to shield and hide the real ecological destruction to the Gulf occasioned by the oil spill, such as the inexplicable and tragic dolphin deaths.

Now, to be fair, the Obama Administration, at the end of March, made another one of its patented government by press release moves by announcing they are “considering” filing manslaughter charges against BP managers. Included in the new PR push was the first official mention of using the somewhat archaic “Seaman’s Manslaughter” law, which is embodied in 18 USC 1115. In a nutshell, the Seamen’s Manslaughter statute allows the government to hold seafarers, owners of vessels, and the corporate management that controls vessels, criminally accountable for maritime accidents that result in the death of a person (Here is a pretty good paper on the statute).

Is there any reason to give the claimed new “push” by DOJ any credibility? The answer depends. Also in late March, the DOJ made a mostly ignored change in leadership on their supposed Gulf Oil Spill investigation. The investigation, the only known active part of which was done by the EPA Environmental Crimes Unit and the US Attorney’s Office in Eastern District of Louisiana, was suddenly yanked and a new “task force” formed to be specially supervised by a chap by the name of John Buretta, who is touted as a veteran criminal prosecutor. That sounds all well and good until you take a good look at what Buretta’s experience really is.

The first thing a closer inspection yields is that Buretta, while indeed having some solid prosecutorial experience, has it almost exclusively in racketeering cases in the Eastern District of New York; he made his bones on mob racketeering investigations. It is hard to see how that lends the experience, knowledge base or skill set for complex environmental crimes. People experienced with complex environmental crimes will tell you (and have told me) environmental crimes is a specialized area, and that a rackets prosecutor from Brooklyn is a severe fish out of water for the Gulf Oil Spill case.

Understandably, the decision to move Buretta in and remove Howard Stewart, the Senior Environmental Crimes Attorney, has generated a high level of frustration in the Environmental section. Behind the scenes, the EPA Criminal Investigative Division (CID) staff believe it is a huge blow because it signals the environmental crimes won’t be dealt with seriously. Furthermore, the EPA criminal investigators have claimed from the start they were being micromanaged by senior political appointees in Washington and not allowed to conduct thorough investigations, just as feared would be the case by the former EPA Criminal Dvision agents when the investigation started. The significance of this marginalization of the environmental unit to the environmental crimes will become clear below.

The other thing that jumps out is the way the Obama Administration has turned their PR play on the matter – it smacks of the same patently dishonest and craven play they ran to slough off any meaningful prosecution of torture and destruction of the critical torture tapes by high level CIA officers, almost certainly working in concert with senior Bush Administration officials. The Buretta announcement appears to have been rolled out by Carrie Johnson, formerly of the Washington Post and now at NPR, and historically a trusted useful tool for the DOJ when they want to want to launder bullshit to the press.

You might remember Johnson from the almost identical type of reporting she did for the DOJ when they were pulling the wool over the public’s eyes regarding the whitewash of the torture tape investigation. When this blog and a few others were making big noise on how the DOJ was cravenly running out the clock on the torture tape destruction prosecutions, the DOJ again turned to Johnson to soft sell the fact they, and their “special prosecutor”, John Durham (who had no torture nor national security experience, but was, yes, another DOJ mob specialist), had intentionally run out the clock on the prosecutions.

Johnson, of course, came through for DOJ with the requisite con job that it was all necessary and there still might be accountability, which was a total joke. And now here is Johnson again carrying the water for the DOJ attempt to shoehorn Buretta, yet another loyal AUSA with nothing but mob experience, but no usable experience in the field to which he is being specially assigned.

So, what does all this mean for the concept of meaningful and appropriate accountability for BP and the other criminal malefactors in the Gulf Oil Spill? The smart money is on the “nothing good” square. While the DOJ now, all of a sudden, is interested in “streamlining” the case, in actuality it likely is the path being set up for a package deal to resolve everything nice and neat so both BP and the Obama Administration can “look forward”. There are subtle tells as to where the Administration is going. The first tell is the newfound emphasis on “Seamen’s manslaughter”, in that, although it is a felony homicide provision, it only requires a showing of regular negligence, as opposed to gross negligence or recklessness under the traditional criminal homicide provisions.

And this is where the sidelining of the environmental crimes team comes into play. By only dealing in terms of regular negligence, as opposed to gross negligence, on the environmental crimes, the administration can minimize the financial penalties assessed to BP. Under the Clean Water Act, the two factors which determine the size of the financial penalty are the total amount of barrels spilled and whether the spill was the result of ordinary negligence, in which case the strict liability damages are assessed at $1,100 per barrel spilled; or “gross negligence” in which case the fine is as high as $4,300 per barrel spilled.

On the largest oil spill in history, having to pay the severely higher damages under gross negligence would be a serious blow to BP. But BP’s own disclosures reveal they are quite certain that will not occur, and there is every indication the Obama Administration intends to see it does not impose such a “hardship” on its favorite partner for military fuel purposes. Not to mention that Barack Obama is again in full campaign fundraising mode and BP is one of his biggest corporate sponsors.

The bottom line is it is a safe bet John Buretta, the rackets specialist, has been assigned to wrap up a nice tidy little package involving simple negligence across the board. It minimizes the spill penalties to BP and will allow criminal charges, if there are any individuals charged at all, to be restricted to a couple of sacrificial lambs who were calling the shots on the Deepwater Horizon rig. If I were Robert Kaluza and Donald Vidrine, the BP company men in charge of Deepwater Horizon when it blew, I would be more than a little worried about the direction this is going, because they are the obvious lambs being prepared for slaughter.

But BP itself, on the other hand, looks set up to be escorted through the process by the Administration and DOJ mostly unscathed. That is what the government does for its valued corporate partners. In fact, far from being penalized and/or debarred from federal contracting as it should be, as Jason Leopold reported Wednesday, BP is being given sweetheart no-bid contracts by the Administration.

Maybe a rackets prosecutor is the right guy after all, because this is quite a racket being run between the US government and BP. A year after Macondo the Mouth of Hell roared, and it is business as usual. Who could have predicted?

[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]


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 proceedings in this case.

As detailed more fully in Defenders’ memorandum in support of this motion, the Court must recuse itself for two distinct and independent reasons. First, the Court’s financial holdings in various companies involved in oil and gas drilling raise in an objective mind a reasonable question concerning the Court’s impartiality in these proceedings, triggering the obligation under 28 U.S.C. § 455(a) for the court to disqualify itself. This obligation is not mitigated by the Court’s sale of some of this stock prior to the issuance of the preliminary injunction on June 22, 2010 since, prior to that time the Court must have formed substantive opinions about the case from both the briefs filed by the parties and the hearing on June 21. The Court owns and/or recently has owned an interest in several companies that comprise part of the network that supports the Gulf’s oil and gas industry. To rule that the moratorium would injure irreparably a network in which the Court was financially invested creates an impermissible appearance of partiality in the mind of a reasonable observer, which is enough to trigger the duty to recuse under § 455(a).

So, hats off to attorney Catherine Wannamaker and her clients the Center for Biological Diversity and Defenders of Wildlife, David Guest of Earthjustice for Florida Wildlife Federation and the Sierra Club and Professor Adam Babich of Tulane Law School’s Environmental Law Center also for the Sierra Club. These intrepid intervenors are doing the job the government lawyers should be doing, but curiously refuse to do.

But this is not the only instance of highly suspect lawyering by the DOJ and DOI attorneys handling the Hornbeck litigation on the six month moratorium. There is also the government’s failure to meaningfully address the critical case Feldman used to craft his contorted ruling. As I said a week ago:

Furthermore, the legal eagles at the DOJ and DOI failed to effectively address and contradict Judge Feldman’s reliance on the case of Motor Vehicle Manufacturers Association V. State Farm Insurance, 463 U. S. 29 (1983), which Feldman contorted and misapplied to wrongfully reach his result.

Here is Feldman’s opinion/order staying the Administration’s six month moratorium. Here is the decision in Motor Vehicle Manufacturers Association v. State Farm that Feldman used to contort the playing field in the direction he wanted. A reading of Feldman’s decision coupled with a close reading of State Farm reveals the clear distinction and contrast between the two situations and why the State Farm decision does not operate in the fashion Feldman claims.

State Farm is remarkably ill applied by Feldman. First off, and most obviously, State Farm reaffirms the proper standard of review, namely that any competent evidence in the agency record mandates upholding the agency determination (in this case the moratorium). Feldman, of course, did a complete end run of this standard. The government, in their respective motions for stay at the district and 5th Circuit, did at least make a halfhearted argument on Feldman violating the standard of review, although they completely fail to use his own linchpin State Farm case against him as would have been appropriate under the circumstances.

Beyond that though, and much more significantly, State Farm delves into a situation where the agency in question there (NHTSA) completely rescinded a rule deemed by the court to be in the interest of protecting the public, and did so without an arguable basis for completely removing the protection to the public. Put more plainly, the government agency in the State Farm situation was harming the public with no viable explanation for the action.

The Court in State Farm found such action – harming the public sector the agency was tasked with protecting instead of helping it – to be directly contrary to the mission and task of the that agency. That logic and framing certainly does NOT apply in the least to the Interior Department’s action in the instant case to impose a six month moratorium where it is crystal clear that the regulatory structure and practices of the oil and gas extraction industry are incapable of protecting the public and environmental welfare. Not to mention that the Department has asserted that their entire array of resources is being consumed entirely by the BP Macondo leak and it is an emergency scenario they are operating under.

In the instant case, Interior was acting exactly within their mission and task to protect the public in relation to mineral exploration and removal, and was not rescinding a rule to protect the public, it enacting a rule – a temporary delay – in order to immediately protect the environment and public, and determine how to better protect the public in the future. There is simply no way to read State Farm as being consistent with the way Feldman applied it to the instant case; in fact a proper scrutiny of State Farm demonstrates that it quite arguable actually supports the government’s agency decision on the moratorium.

But if you review the subsequent motions by the government by and through their attorneys at the DOJ and DOI linked above (and here and here for convenience), they barely address the State Farm decision Feldman used to leverage his entire decision. It is almost beyond belief that a competent lawyer truly zealously and appropriately fighting to restore the moratorium would fail to attack Feldman’s use and abuse of State Farm.

So, if the Obama Administration and Interior Department Secretary Ken Salazar truly believe in the propriety of their six month moratorium, and are dedicated to fighting through appeal for it, why are their lawyers not acting like it? Are they really not trying because they really don’t care, or are they just sloppy and incompetent? It is one or the other.

Oh, and the 5th Circuit is moving things right along. The 5th Circuit told the Hornbeck and related moratorium challengers to file briefs on the stay issue by Friday July 2. Hornbeck filed a brief, as did, quite astoundingly, Senator Mary Landrieu against the government and in favor of oil companies. The government must reply by July 6, if it wishes. The Court set a one-hour hearing for the afternoon of July 8, in New Orleans and said no delays will be granted.


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 contrary to normal standards of review for such issues, keep in mind the subject case of Hornbeck Offshore Services et. al v. Salazar had been assigned to Feldman for two weeks and, significantly, the adversarial hearing the opinion resulted from actually occurred the day prior, June 21, while Feldman obviously still held the stock even he considered an ethical issue.

Even more distressing is the fact that it has now been revealed from Judge Feldman’s 2009 financial disclosure, literally just filed and only released this week after demand resulting from his questionable ruling, that Feldman is very heavily invested in Blackrock Financial products. Blackrock is, of course, the single biggest shareholder in BP. As the New York Times put it:

No single institution has more money riding on BP than BlackRock, the money management firm that is BP’s largest shareholder.

Well that certainly sounds like reason to pause, eh? There are two sources of guidance for federal judges such as Feldman in instances like this, the statutory guidance of 28 USC 455 and the Code of Conduct for United States Judges contained within the Guide to Judiciary Policy of the US Courts. Both sets of provisions yield the same guidance, so I will focus on the statutory provision as it is more specific and would appear to take precedence; 28 USC 455 provides inter alia:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his 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 substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.
(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.
(d) For the purposes of this section the following words or phrases shall have the meaning indicated:
(1) “proceeding” includes pretrial, trial, appellate review, or other stages of litigation;
(2) the degree of relationship is calculated according to the civil law system;
(3) “fiduciary” includes such relationships as executor, administrator, trustee, and guardian;
(4) “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
(i) Ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the judge participates in the management of the fund;
(ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization;
(iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
(iv) Ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.
(Emphasis added).

A comparison of the strictures of 28 USC 455, especially those I have highlighted, with the conduct of Judge Martin Feldman cannot lead to any conclusion other than Judge Feldman has acted in violation of his ethical obligations. The standard under 28 USC 455 is recusal if there is even a question regarding the appearance of impartiality. Common practice in Federal courts dictates that, even where there are underlying facts that may mitigate a judge’s duty to recuse, there is an affirmative duty imposed on the judge to disclose and explain on the record.

The evidence to date is that Judge Feldman neither recused nor disclosed and, in fact, was surreptitiously scurrying around selling interests after two weeks of having the case, and a day after presiding over the crucial hearing in the matter, in some kind of attempt to cleanse himself prior to the formality of making his decision public.

Even if Feldman did not learn about his stock holding in Exxon until the last minute, which appears to be his claim, the proper course would have been to recuse or delay until full disclosure could be made and waiver by the parties obtained if they were so willing. Instead, Feldman rushed to secretly sell his stock and then slammed out his decision favoring oil interests over the judgment of the responsible administration agency and the health of the environment for the Gulf of Mexico and the planet earth. This is an atrocious and unsavory set of facts on the part of Judge Martin Feldman and goes far beyond the “appearance of impropriety or conflict”. It is hard to see how a reviewing court, in this case the 5th Circuit, could let this stand.

Which brings us to the second part of the title caption, the conduct of the government lawyers, notably the ever present DOJ. As I intimated in my initial post last Tuesday immediately after Judge Feldman’s opinion was released to the public, the public protestations to the contrary, you have to wonder whether the Obama Administration’s heart is really in defending their six month moratorium. First off, the Perry Masons at the DOJ appear to have violated one of the prime directives of trial lawyers, know your judge. If the DOJ researched Judge Feldman and knew his personal holdings in Gulf oil stocks and dependent interests, they sure did not evidence it or act accordingly. If they did not so research and know and understand Feldman’s conflicts and prejudices, they are incompetent. Either way, there is a serious cloud of questions over the government’s lawyering effort in Hornbeck Offshore Services et. al v. Salazar.

The cloud of questions was already present as of a couple of hours after Feldman issued his ruling. In addition to the aforementioned failure to know and address their judge by the DOJ, there was the issue of how the responsible lawyers for the government permitted briefing to be submitted in Interior Secretary Ken Salazar’s name misrepresenting the nature of the concurrence of the panel of seven experts that Feldman used to excoriate the government. As I explained in the earlier post linked above, that should not have been used as the basis Feldman creatively and manipulatively used it for; nevertheless it was flat out bad, if not incompetent, lawyering by the DOJ to not clean that up before arguing as their centerpiece in defending against Plaintiff Hornbeck et. al’s attack.

But from almost the second Fedman’s decision was issued, the issue of his conflicts was percolating as described above, and getting stronger and more egregious by the day. 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. Furthermore, the legal eagles at the DOJ and DOI failed to effectively address and contradict Judge Feldman’s reliance on the case of Motor Vehicle Manufacturers Association V. State Farm Insurance, 463 U. S. 29 (1983), which Feldman contorted and misapplied to wrongfully reach his result (I will likely come back to the absurdity and contorted error in Judge Feldman’s decision in this regard at a later date).

Feldman was required by both statutory and ethical considerations to recuse himself; at a absolute base minimum to disclose his appearances of conflict on the record; but he did neither. Any competent standard of lawyering would mandate the government to raise the issue if they are going to competently fight Feldman’s ruling; but they have not, and they have engaged in other consistently questionable lawyering on this case as well.

The public ought to be asking what in the world is going on here. On all fronts.


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.

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Originally Posted @ https://www.emptywheel.net/bp-oil-disaster/