Friday, July 9, 2010

Hornbeck v. Salazar Upholds Gulf Deepwater Drilling

Jul 8: In expedited fashion, the U.S. Court of Appeals, Fifth Circuit, issued a 2-1 decision, just hours following oral argument in the case, denying the Obama Administration's request to stay district court ruling that lifted a six month Department of Interior (DOI) moratorium on offshore, deepwell oil and gas drilling. The decision on the stay is temporary, and the court must still issue a ruling on the case as to whether to permanently uphold the U.S. District Court decision. 
    According to a media report in the Daily Caller the Appeals Court ruled, "Secretary [Salazar] has failed to demonstrate a likelihood of irreparable injury if the stay is not granted; he has made no showing that there is any likelihood that drilling activities will be resumed pending appeal." The Caller said, "The decision allowed for the federal government to apply to the court for emergency relief should any deep-water rigs actually commence drilling before the full appeal is heard on an expedited calendar in the week of August 30."
    On June 22, U.S. District Judge Martin Feldman, for the Eastern District of Louisiana in New Orleans issued an opinion and order lifting the moratorium on deepwater offshore drilling (Hornbeck v. Salazar CA 10-1663) [See WIMS 6/22/10]. The Moratorium, entitled "Suspension of Outer Continental Shelf (OCS) Drilling of New Deepwater Wells," was issued by DOI on May 28, 2010, and NTL No. 2010-N04 [See WIMS 5/28/10]. The six-month moratorium applied to all drilling on the Outer Continental Shelf in water at depths greater than 500 feet."
    According to a Reuters media report, DOI spokeswoman Kendra Barkoff commented on the decision and said, "Based on what we have learned since the BP oil spill, it has become increasingly clear that companies may not have adequate containment and response capabilities to respond to a spill and therefore, as the secretary has said previously, he will be issuing a new moratorium." [See WIMS 6/23/10 for various reactions to the moratorium.]
    On July 7, the Alliance for Justice issued a report which it said found that many U.S. Fifth Circuit Court of Appeals judges have extensive and multi-faceted ties to the oil industry, a factor which they said "will come into play this week as a three-judge panel hears the Obama Administration's appeal of a lower court decision blocking a six-month moratorium on deepwater drilling in the Gulf of Mexico." The report, Judicial Gusher: the Fifth Circuit's Ties to Oil, examines not only the circuit's judges' financial interests, but also the kinds of clients they had while in private practice, their attendance at industry-sponsored "seminars," and other connections. Detailed information is offered on the three Fifth Circuit judges assigned to hear the Administration's appeal of District Judge Martin Feldman's order prohibiting the drilling moratorium from going into effect.
    Among its findings, the report reveals that two of the judges on the appeals panel, Judges Jerry Edwin Smith and William Eugene Davis, frequently represented the oil and gas industries while in private practice. They also attended all-expense-paid "seminars" held at resorts in Big Sky, Montana, and sponsored by the Foundation for Research on Economics and the Environment (FREE), whose purpose is to oppose government regulation, promote free-market solutions to environmental problems, and to "explain why ecological values are not the only important ones." Judge James L. Dennis, the third member of the panel, has extensive financial holdings in at least 18 companies in the energy industry, a situation not uncommon among his Fifth Circuit peers.
    According to the brief decision, Circuit Judge Dennis concurred in part and dissented in part. He indicated, "I would grant the Secretary's motion to stay the district court's preliminary injunction pending appeal, and to this extent, I respectfully dissent from the majority's order. I concur, however, in reserving the Secretary's right to apply for emergency relief and ordering an expedited appeal and briefing. I will assign reasons for my dissenting view at a later date."
    Access the Appeals Court ruling (click here). Access the Daily Caller article with more details (click here). Access the Reuters article (click here). Access a release from the Alliance for Justice and link to the report (click here). Access a commentary on the Appeals Court decision from the from the Center for Progressive Reform with links to related documents (click here). Access district Judge Feldman's 22-page opinion (click here); and 3-page Order (click here). Access links to the moratorium, notices, and related information on DOI's response (click here).