In stern and unsparing language, a noted federal trial judge in Louisiana Tuesday blocked the Obama administration from implementing its heavily publicized and politically charged sixth-month moratorium on offshore drilling operations in the Gulf of Mexico following the Deepwater Horizon disaster.
The Justice Department and the White House immediately announced that the ruling would be appealed in an effort to revive the moratorium, which was quickly issued on May 28 as the scope of the Gulf oil spill became more fully understood.
"If some drilling equipment parts are flawed, U.S. District Judge Martin
wrote in his 22-page order
, "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." Later calling the moratorium an "arbitrary and capricious" use of the administrative power of the Department of the Interior and the Minerals Management Service, the judge granted a request by several offshore-drilling-related companies for a court order that would allow drilling to continue in the Gulf for 33 licensed operators. Otherwise, he found, those companies would continue to suffer irreparable injuries as a result of the drilling ban.
Often outspoken about issues relating to the Gulf, Judge Feldman is a 1983 appointee of Ronald Reagan. He was recently named by United States Supreme Court Chief Justice John Roberts to a six-year tour of duty on the nation's secret Foreign Intelligence Surveillance Court. In 1957, fresh out of law school, Judge Feldman served as legendary U.S. District Judge Minor Wisdom's first law clerk and has been recognized since for his work about judging scientific testimony.
"[T]he blanket moratorium," the veteran judge wrote, "with no parameters, seems to assume that because one rig failed and although no one yet fully knows why, all companies and rigs drilling new wells over 500 feet also universally present an imminent danger." Worse, he wrote, the Interior Department/MMS report upon which the moratorium was based was fatally flawed. "The report patently lacks any analysis of the asserted fear of threat of irreparable injury or safety hazards posed by the thirty-three permitted rigs also reached by the moratorium. It is incident specific and driven: Deepwater Horizon and BP only. None others." As a result, Judge Feldman wrote, the Court "is unable to divine or fathom a relationship between the findings and the immense scope of the moratorium."
While the Justice Department contemplates the terms of its appeal, the Interior Department surely will be reviewing its policies and procedures in light of the some of the judge's more colorful observations. For example, in a footnote late in the ruling, Judge Feldman unloaded on what he considered the Interior's shoddy written work:
"Indeed, while the government makes light of the fact that several of the experts disagree with the recommendations in the Report by noting that they do not disagree with the findings, of greater concern is the misleading text
in the Executive Summary that seems to assert that all the experts agree with the Secretary's recommendation. The government's hair-splitting explanation abuses reason, common sense, and the text at issue
." (Emphasis added).
As a legal matter, it is quite rare for a federal judge to accuse the federal government of outright deception. And surely as a political matter the language and tone of the judge's ruling make things particularly dicey for leaders at the Interior Department and the MMS. Can their derided and beleaguered experts now answer the many questions raised by Judge Feldman as well as the ones surely to come from the judges on the 5th U.S. Circuit Court of Appeals? Has the science and evidence behind the call for the moratorium become any stronger in the past month since the report was issued? And who is responsible for the "misleading text" noted by the federal judge?
In any event, we now know that Judge Feldman thinks very little indeed about the government's factual support for the moratorium or the link between the valid evidence presented in support of the drilling ban and the conclusions reached by the administrators in announcing it. The question is whether the appeals court judges of both the 5th Circuit and the U.S. Supreme Court will share his skepticism or whether they will be willing to grant more deference to the executive branch as it maneuvers through the oil spill crisis. But for now, at least, it's drill baby drill in the Gulf.