David R. Henderson  

Rule of Law, 1, Obama 0

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I've read a lot of judges' decisions, but I've rarely read any that are so blunt as the one issued by Martin Feldman today, a decision that overturns the Obama administration's moratorium on offshore oil drilling. Some excerpts:

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.

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.

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 rarely say this about 20+ page judicial decisions, but this one is worth reading.


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CATEGORIES: Regulation



COMMENTS (8 to date)
Tom West writes:

Actually, to me this would be exactly what the government would want. It gets to be the environmental good guy by trying to protect us against environmental catastrophe, but the drilling goes on so that there's no big economic price to pay.

All the benefits and none of the cost. From the government's perspective, what's not to like?

Frederick Davies writes:

After everything else that has happened concerning the Gulf Oil Spill, how can you say "Obama 0"!? Even if we look at it superficially, in this mess the Rule of Law shines only for its absence ($20bn extorted from BP, cancellation of dividends due to political pressure...). Maybe the Rule of Law has just scored its "Goal of Honour", but its has lost the match.

MMJ writes:

I think you spoke too soon. From an AP story, "Interior Secretary Ken Salazar says he will issue a new order imposing a moratorium on deepwater drilling after a federal judge struck down the existing one."


rjs writes:

The greased wheels of offshore drilling justice - Could there be less of a surprise than the fact that a Louisiana district court judge with financial ties to the offshore oil industry, appointed to the federal bench by Ronald Reagan, granted a preliminary injunction against President Obama's six-month moratorium on offshore "deepwater" drilling? The real shocker would have been finding a local judge who didn't have any entanglement with the oil business. Judge Martin Feldman "owned stock in Transocean, as well as five other companies that are either directly or indirectly involved in the offshore drilling business." Irrespective of the merits of the argument made by the judge in his opinion, the fact that he did not recuse himself is inexcusable. But as the case flies up the appellate ladder, it's not going to get any easier to find an impartial hearing. Judges appointed by presidents who stressed the primacy of deregulated free markets will likely have different views than judges appointed by presidents who took protection of the environment seriously.

http://www.salon.com/technology/how_the_world_works/2010/06/22/louisiana_judge_blocks_moratorium/index.html

rpl writes:

rjs,

I notice that you confined your comments to the motivations of the players involved. Do you have anything to say about the substance of the opinion? Any opinion on the misrepresentation of the NAE's report? Or do the facts just not matter in cases like this?

Charlie writes:

rpl,

There is nothing objective in the decision. The judge is using an irreparable harm test to the region, but just completely glosses over that the interior is overstretched and not able to bear another disaster. In fact, he notes it calls it "disturbing" and moves on.

Also, by his own logic, he says a rig broke and we don't know why, thus suspending other deep water drilling is irresponsible. Well, the argument could easily go the other way, if we don't know why a drill broke down, perhaps it is irresponsible to continue drilling.

Acccording to the judge, he cannot impose an injunction under these circumstances:

(3) the threatened injury
outweighs any harm that will result to the non-movant if
the injunction is granted; and (4) the injunction will
not disserve the public interest.

But since the judge completely glosses over the governments argument that the dept. of interior is overstretched, it can't speak to three and four.

It's fine to agree with the ruling, but to pretend this was some objective administration of the law is incorrect. The case was heavily dependent on the subjective opinions of the judge. Se la vie.

rpl writes:

Charlie,

Those are fine arguments. Note that rjs made none of them.


Jeremy, Alabama writes:

An interesting caller into the Boortz show yesterday pointed out the similarity with a judge's opinion issued in the 70's(?) ordering a local school district to raise taxes and build a school to serve a minority district. It is the judicial branch usurping legislative and executive functions.

Our friend the Louisiana judge might have a good engineering, statistical, economic or even moral argument, but as a point of law he is probably on weak ground. And conservatives always feel a bit queasy about end-justifies-the-means arguments, which puts us at a huge disadvantage to liberals, for whom archaic structures such as the Constitution are despised as barriers to progress.

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