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Judicial activism in the deepwater drilling decision

The confirmation hearings for Supreme Court nominee Elena Kagan are about to get under way -- and with them the inevitable denunciations of activist liberal judges substituting their policy preferences for those of elected officials.

Spare me.

If you’re worried about judicial activism, take a look at the Ronald Reagan-appointed federal judge in New Orleans who just lifted the Obama administration’s moratorium on deepwater drilling.

To get to this result, Judge Martin Feldman had to leap over two steep legal hurdles. First, he had to find that the decision to impose a six-month moratorium on such drilling was “arbitrary and capricious.” Second, he had to conclude that allowing the moratorium to remain in place would impose “irreparable harm” on the companies challenging it.

The “arbitrary and capricious” standard is supposed to protect against judicial activism. It means that government agencies are entitled to broad deference if they can show a reasonable basis for their action.

As the Supreme Court has explained, and Feldman quoted in his ruling, “an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”

So, you might ask, in the context of the Gulf disaster and the moratorium: Has Judge Feldman seen pictures of those pelicans?

In overturning the moratorium, the judge said he could not find adequate justification for its “immense scope.” For one thing, he noted, it prohibited drilling at depths of 500 feet or more -- not 1,000 feet, as some experts consulted by the agency had recommended. (The Interior Department, by the way, didn’t do itself any favors by making it seem as if the experts supported the 500-foot moratorium.) For another, the government did not show any risk of safety problems on the 33 other deepwater rigs already drilling in the Gulf of Mexico.

As Feldman put it, “Are all airplanes a danger because one was?” Well, no, but if one model of airplane has demonstrated safety problems, the government can ground similar ones to check for problems. And if there is no way to manage the results of a crash -- if you can’t even get ambulances to the scene -- then you might want to err on the side of caution.

Which gets to the second legal question: irreparable harm, one of the requirements for lifting the moratorium while the case proceeds. Feldman sees the harm, understandably enough, largely in economic terms. “An invalid agency decision to suspend drilling of wells in depths of over 500 feet simply cannot justify the immeasurable effect on the plaintiffs, the local economy, the Gulf region, and the critical present-day aspect of the availability of domestic energy in this country.”

And those pelicans?

The Gulf spill epitomizes irreparable harm. Interior Secretary Ken Salazar’s order imposing the moratorium finds that continued drilling “poses an unacceptable threat of serious and irreparable harm to wildlife and the marine, coastal, and human environment.”

It could be that the moratorium is too broad, or that it did not adequately take into account the economic consequences of suspending drilling. But why is that for Judge Feldman to decide rather than Secretary Salazar? And where is the conservative outcry over policymaking from the bench?

By Ruth Marcus  | June 24, 2010; 3:55 PM ET
Categories:  Marcus  | Tags:  Ruth Marcus  
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Comments

This is judicial activism at its absolute worst. Hopefully the executive will find a way around this. These wells need to be inspected by a functioning agency before they should be allowed to operate!

Posted by: bertram2 | June 24, 2010 4:08 PM | Report abuse

The judge's ruling is simply illogical--not to say nuts. The MMS screwed up in not adequately reviewing thosde safety plans about protecting the walruses of the Guld of Mexico. Now that we know that, it's only reasonable to take the time to be sure the pelicans of the Gulf of Mexico, not to mention the humans living around it, are safe.

Posted by: MaineWoman | June 24, 2010 4:17 PM | Report abuse

This ruling only makes sense if the judge believes he is protecting the sanctity of private property.

In this case, the private property is the Gulf of Mexico, which everybody knows, belongs to the oil companies.

Posted by: gwcross | June 24, 2010 4:26 PM | Report abuse

Judge Martin L.C. Feldman should have recused himself but instead stepped into the Honey Pot to Root out Oil corruption of Federal Judges. Pack your bags judge because the Justice Department is coming for you and other Oil money corrupted Judges. You’ve stepped in it now and we can smell your stink.

Now the Interior and Justice Department can Investigate and Prosecute these Criminal Actions.

Judge Martin L.C. is an Active Investor in Oil and Gas Drilling (Transocean, Ocean Energy, ATP Oil and Gas, Hercules and Rowan, Parker Drilling etc.,) with a personal financial stake in his decision.

2008 financial Disclosure Report:
http://www.judicialwatch.org/jfd/Feldman_Martin_L_C/2008.pdf
http://slabbed.wordpress.com/2010/06/22/katrinas-who-dat-judge-martin-feldman-now-dabbling-in-oil/
http://news.yahoo.com/s/ynews/20100622/ts_ynews/ynews_ts2771

No Problem, This is an easy appeal to win. BP, ExxonMobil, Chevron, Shell, and ConocoPhillips:

* Do not have Emergency Response Equipment and Manpower; in Violations of Leases
* Submitted Fraudulent Disaster Response Plans; in Violation of Leases
* Submitted Fraudulent Environmental Impact Plans; in Violation of Leases
* Submitted Fraudulent Inspections and Safety Reports; in Violation of Leases

BP, ExxonMobil, Chevron, Shell, and ConocoPhillips Oil are putting USA Lives and Resources at Risk for a Duplicate Disaster. You Reap What You Sow: LEASES REVOKED!!!

You Have Killed: Dolphins, Turtles, Pelicans, North Atlantic Bluefin Tuna, Guppies, Egrets, Shrimp, Whales, Porpoises, Sharks, Oysters, Shrimp and Blue Crab, Warblers, Orioles, Buntings, Flycatchers, Swallows, Plovers, Sandpipers, Terns, Oystercatchers and over 96 migrating bird species, and Crawfish.

Posted by: liveride | June 24, 2010 4:26 PM | Report abuse

I agreed, they have to have emergency plans on file, audit them for references to Walruses and then shut down and arrest for fraud any company which has references to Walruses, ice flows etc in their water water plans.

Though if they would drill relief wells, like is done in many other big Western Country oil fields, I could be convinced to let them continue until the the danger points at least.

Note they have also killed a good number of humans, and I betting the body count will be in the hundreds by the time all this disruption plays out. Of course, several fishermen likely haven't drown due to not be able to go out and fish as well.

Posted by: Muddy_Buddy_2000 | June 24, 2010 4:38 PM | Report abuse

"It could be that the moratorium is too broad ... . But why is that for Judge Feldman to decide rather than Secretary Salazar?"

----------------------------

It's called judicial review, lady. Duh.

Interesting that you agree that the judge's finding that the moratorium was too broad was likely correct, but think his ruling was "illogical."

Posted by: zuzu2 | June 24, 2010 4:46 PM | Report abuse

Your analysis of this legal opinion is exactly on point. In addition, this case is as good an example as you can find of a judge ignoring the law and deciding a case based on sympathy -- in this case, sympathy for the companies and workers who are economically hurt by the moratorium. Funny, but I don't hear Jeff Sessions and his cronies complaining about this one.

Posted by: mattcliff | June 24, 2010 4:48 PM | Report abuse

The judge, with his extensive investments in drilling, including in the company whose rig exploded and is killing the Gulf, seems to be a walking billboard for corrupt judicial decision-making. He should have recused himself. That seems obvious to anyone with even cursory knowledge of the law.

Ruling on an issue that directly and profoundly impacts his personal financial status—isn't there a law against that? Is there a legal expert out in WAPO readerland who can tell us what the recourse might be for such a blatantly self-serving decision? Who can bring an action against him? One or more of the thousands of Gulf fisherfolk who can't make a living now? Ruined hotel owners? Besieged wildlife agencies or NPOs? Someone needs to step up. Quick.

Posted by: yogi11 | June 24, 2010 4:49 PM | Report abuse

"It's called judicial review, lady. Duh."

No, dude. It's called judicial review under the "arbitrary and capricious" standard of the Administrative Procedure Act, which says that technical judgments like this are for the executive branch, not the judiciary, to make.

Duh.

Posted by: mattcliff | June 24, 2010 4:52 PM | Report abuse

from the news I have seen, the moratorium will only do irreparable harm to this judges stock portfolio. Where is the shame with these judges?? Every decent judge who owned oil stocks recused themselves - thsi guy is his basing his ruling on his wallet - nothing more.

Posted by: sux123 | June 24, 2010 4:53 PM | Report abuse

Ahh Ruth. What must it be like for a hack like yourself to wake up and write a column that you know is full of lies that thousands of people will read. I noticed one teeenie tiny thing you left out. That the administration LIED about the panel of experts saying they recommended the ban (why 6 months, not 2, 4 17?). Ken Salazar was forced to apologize to them. The judge specifically mentioned that in his ruling. I guess you dont feel that is important to the story? Liar. Shame.

Posted by: j751 | June 24, 2010 5:08 PM | Report abuse

For God's sake get a couple of anal retentive inspectors out to those rigs. If they can't find some violation to close them down, they aren't earning their pay. What about the fact the every single oil company plan for dealing with a spill is a complete work of fiction. If they don't have a viable recovery plan in place, I suspect they're in violation of the drilling regs. Enforce! Enforce! Enforce! See how much drilling they can do when everyody stops looking the other way. John Moore

Posted by: jhmcddam | June 24, 2010 5:21 PM | Report abuse


"That the administration LIED about the panel of experts saying they recommended the ban (why 6 months, not 2, 4 17?). Ken Salazar was forced to apologize to them. The judge specifically mentioned that in his ruling. I guess you dont feel that is important to the story? Liar. Shame."


Um, did you notice where she wrote this:

"The Interior Department, by the way, didn’t do itself any favors by making it seem as if the experts supported the 500-foot moratorium."

Don't you think you owe it to Ms. Marcus to actually read her column before calling her a liar? Even if you don't, it doesn't make you look terribly bright or fair-minded, to say the least.

Posted by: mattcliff | June 24, 2010 5:25 PM | Report abuse

Ms Marcus, you ask why this is for Judge Feldman to decide, but you concede that “It could be that the moratorium . . . did not adequately take into account the . . . consequences.” That would be precisely what would make the moratorium arbitrary and capricious, and that’s what is for a judge to decide.

Posted by: Whatzizname | June 24, 2010 5:32 PM | Report abuse

"offered an explanation for its decision
that runs counter to the evidence before the agency."

Umm. I think that saying this moratorium was based on the recommendation of 7 scientists qualifies, especially when you consider the fact that those scientists recommended AGAINST the moratorium.

If we didn't have a corrupt Congress, Sec'y. Salazar would be the subject of corruption hearings.

Posted by: gmg425 | June 24, 2010 5:37 PM | Report abuse

Marcus: "Has Judge Feldman seen pictures of those pelicans?"

The moratorium has nothing to do with "those pelicans", which are fait accompli. In any case, pelicans are damn pelicans, not people, and people are suffering thanks to the idiot messiah's illegal moratorium, which is cynically calculated to draw attention from his own disastrous incompetence.

Posted by: thebump | June 24, 2010 5:40 PM | Report abuse

thebump never fails to amuse with his unique brand of mindless gibberish.

Obama Derangement Syndrome is really wreaking havoc on the already overstressed little brains of rightwingnuts.

Posted by: koolkat_1960 | June 24, 2010 6:34 PM | Report abuse

I read Judge Feldman's opinion, and a couple of the briefs. What was remarkable to me was that while there was discussion of the fact that only 33 offshore rigs were shut down by the moratorium, there was no discussion by either side of the actual depth of each affected rig.

So the lawyers on either side either didn't know the actual depths, or if they knew, felt that those facts wouldn't help them. But the truth is going to come out, since this was only a preliminary injunction.

I recently heard the Congressional testimony of oil executives from other companies, who all disclosed that they had rigs drilling at depths greater than 5200 feet. So I'm pretty certain that among the 33 rigs which were shut down, some are in very deep water. And I've read that BP, which is not a plaintiff in this suit, has a major oil discovery in the Gulf that requires drilling at 10,000 feet.

Judge Feldman's opinion references testing of blow out preventers that revealed a significant failure rate at 3000 psi, which would be around 6000 feet.

So does anyone have a link where the actual depths of the 33 rigs are reported? Or does the Post have any real reporters left who can find out?


Posted by: PostSubscriber | June 24, 2010 7:02 PM | Report abuse

Usually I like Ms. Marcus' posts even if I do largely disagree with her. However, this appears to be nothing more than a simple Appeal to Emotion.

Posted by: BradG | June 24, 2010 8:00 PM | Report abuse

Ruth, you need to review the statute that authorizes the agency to ban drilling. It requires irreparable harm! Just saying that harm is possible or even likely is not enough. The government acted arbitrarily in banning all drilling. As for the injunction, the showing of irreparable harm there is harm to the plaintiffs and the public. It is not the alleged harm that might occur if drilling is allowed. The judge found that the plaintiffs had met their burden. The ruling is hardly surprising and hardly the result of "judicial activism."

Posted by: AnnReid | June 24, 2010 8:04 PM | Report abuse

Ruth Marcus, You are an ignoranus.

Posted by: rchaa27aa | June 24, 2010 8:12 PM | Report abuse

AnnReid had this to say...
Ruth, you need to review the statute that authorizes the agency to ban drilling. It requires irreparable harm! Just saying that harm is possible or even likely is not enough. The government acted arbitrarily in banning all drilling. As for the injunction, the showing of irreparable harm there is harm to the plaintiffs and the public. It is not the alleged harm that might occur if drilling is allowed. The judge found that the plaintiffs had met their burden. The ruling is hardly surprising and hardly the result of "judicial activism."

===================================

Not to mention that the people that this would impact....along the coast, are generally in FAVOR of continuing to drill.

Oh, I'm sorry, I forgot...people in DC are so much smarter and know what's best for people in other regions of the country.

Posted by: eeterrific | June 24, 2010 8:19 PM | Report abuse

Hah!!! And you left out the biggest hurdle of all. That somehow, this case wasn't a conflict of interest for a judge with stock holdings in 6(!) oil companies in the gulf -- including (drumroll please) Transocean -- who sold BP the Deepwater Horizon rig.

Posted by: zcezcest1 | June 24, 2010 8:19 PM | Report abuse

A couple self evident thoughts that the Judge didn't bother to have.

Not one of the outfits drilling or wishing to drill in deep water has the foggiest idea how to shut down a blow out well at that depth. If they did BP would be trying it.

Not one of the outfits wishing to drill in deep water has the foggiest idea of how to deal with the results of a lengthy oil well blow out in deep water. Exxon and company so testified, and of course if they had a plan BP or the Coast guard would be using it.

Not one of the units wishing to drill in deep water has any real concept of what went wrong in the first place, everyone is guessing and no-one has any reason to expect that the similar blow out preventers are any more likely to function properly at a mile down than the one that failed. But the Government isn't allowed to generalize to the whole industry when the whole industry is using the same suspect equipment under the same suspect conditions to drill into the same suspect geologic strata.

Plaintiffs were not required to support any of their assertions and the government had the public record of the past two months available on demand.

But, being himself such a good Republican Reaganite, he DID have the Republican Reaganite principle, "The Government isn't the solution to the problem, it IS the problem." to make up the lack of facts upon which to base his ruling.

If you don't believe that the concept of conflict of interest has any meaning, you have no reason to recuse yourself and thus risk a disinterested Judge finding against your financial interests.

Republican Jurisprudence strikes again.

Posted by: ceflynline | June 24, 2010 8:22 PM | Report abuse

The judge ruled the moratorium was instituted illegally based on emotion and political strategy rather than law and logic. Bottom line, the feds can't just come in and stop commercial activity on the whim of one man. Sadly it doesn't make much difference. While Hornbeck may have won the battle, the progressives won the war. Even without the moratorium, Obama, by demonstrating a willingness to ignore the rule of law, has created an atmosphere where no company or investment manager is willing to invest in US offshore . Besides rigs and supply boats moving out of the country, I think we will see an exodus of oil and drilling companies moving their operations and offices to countries with a more stable political environment. I think between the EPA war on coal, Obama's personal interest in shutting down the offshore industry, new regulations hampering banks ability to raise investment capital, and the development of a punitive tax structure, the energy industry, and a few other favorite targets of the administration will be moving their headquarters out of the country and leaving subsidiaries they can afford to walk away from, much like Venezuala. Sadly I don't think the industry will return even after the 2012 elections. Congress has poisoned the well by aiding and abetting Obama for the sake of political points. Noone, besides Mr Soros, can afford to make multi-billion dollar investments based on faith in fair weather friends.

Posted by: hdc77494 | June 24, 2010 9:01 PM | Report abuse

The Judge must not read the Rolling Stone.

Per congressional documents, BP's enormous "Atlantis" rig, about 100 miles further out from the Deepwater Horizon,
"lacks required engineering certification for as much as 90 percent of its subsea components – a flaw that internal BP documents reveal could lead to "catastrophic" errors."


Is that "arbitrary and capricious", too?


@Muddy_Buddy_2000
"shut down and arrest for fraud any company which has references to Walruses"

It oughtta be the law.

Posted by: narv | June 24, 2010 9:20 PM | Report abuse

Thank-you Judge Martin Feldman for lifting the liberal administration’s moratorium on deepwater drilling. Your decision has affirmed States Rights. Your action has removed the burden of a US taxpayer bail out to Gulf States and has properly placed the governmental responsibilty on the affected Gulf States to deal with BP. God bless the Republic... drill baby drill... freedom and democracy for all especially our new corporate citizens. CHEERS!

Posted by: whocares666 | June 24, 2010 9:27 PM | Report abuse

MILLER123 wrote:
Even the gulf workers are telling us the oil rigs can't pass an inspection. Is this what Jindal is afraid of? Is he afraid that the workers who had been complaining all along to the state about unsafe working conditions stories will leak out? The only way the federal Govt should end the moratorium for 17-25 out of 4,000? oil rigs in the gulf is if the gulf coast states and that "Jack...," Gov. Bobby Jindal sign a letter of promise not to beg "Big Govt" for assistance the next time just one of the thousands of unsafe oil rigs blow up in the gulf.

Posted by: MILLER123 | June 24, 2010 10:24 PM | Report abuse

MILLER123 wrote:
Even the gulf workers are telling us the oil rigs can't pass an inspection. Is this what Jindal is afraid of? Is he afraid that the workers who had been complaining all along to the state about unsafe working conditions stories will leak out? The only way the federal Govt should end the moratorium for 17-25 out of 4,000? oil rigs in the gulf is if the gulf coast states and that "Jack...," Gov. Bobby Jindal sign a letter of promise not to beg "Big Govt" for assistance the next time just one of the thousands of unsafe oil rigs blow up in the gulf.

Posted by: MILLER123 | June 24, 2010 10:24 PM | Report abuse

What a surprise , a Reagan appointee , another Fascist Reich wing activist who doesn't uphold the law or use common sense but radical Reich wing / fascist ideology . This is insane ... but not surprising . I wonder when / if you Republican supporters will ever wake up and realize who and what you are supporting , and what you are doing to this country ( and to yourselves ) by supporting these freaks . The Republican party of today would run Reagan out of the party , he wouldn't be radical enough for them , that is the truth .The Republicans and Reich wing have been destroying this country and are doing every thing possible to finish the job , they are fascists , anti Democracy , anti Constitution and anti American traitors and saboteurs . This ruling is another perfect example of what they are .

Posted by: Koom | June 24, 2010 10:54 PM | Report abuse

One more point , to shut down the drilling for a time until safe guards / safety measures can be put in place does not shut down production rigs , drilling rigs and production rigs are two different things ,the number of drilling rigs compared to the number of production rigs is minuscule , so this jobs bit the Repugs try to use is BS , does not affect that many people . Again , the production rigs are not being shut down , just drilling rigs .The Republicans don't give a damn about people all across the country being unemployed but God forbid shutting down an oil drilling rig , if another rig explodes and creates another gusher ... no big deal , that's just the cost of doing business .The Republicans are owned by , work for and represent the oil companies , not you , me or the well being of this country . Drill baby drill !

Posted by: Koom | June 24, 2010 11:05 PM | Report abuse

It’s a bit scary to think he is comparing the oil rig disaster to airplanes. If I understand him correctly if a plane goes down and kills a bunch of people because of an apparent safety issue and the government forces the airlines to ground the fleet of aircraft until it is resolved he would reverse the government’s decision?

Posted by: Southeasterner | June 25, 2010 12:53 AM | Report abuse

Judicial activism is great when it helps the capitalist class, but bad when it doesn't.

There's a class war going on, but only one side is fighting. Wanna guess which one?

Posted by: santafe2 | June 25, 2010 1:00 AM | Report abuse

Actually Ruth the Judge gave BACK to the people of the region their LIVELIHOODS' though you sitting back in your "ivory" tower slinging arrows on behalf of the Obama Administrations in the form of Salazar LYING about the Engineers report is nothing new for the Washington Post. I will do a happy dance the day your paper and the NY Times are worth the true value of toilet paper!

Posted by: Jaded2 | June 25, 2010 5:43 AM | Report abuse

Actually Ruth the Judge gave BACK to the people of the region their LIVELIHOODS'

Posted by: Jaded2 | June 25, 2010 5:43 AM | Report abuse

Minus the 11 who died in the explosion of course.

Working in the oil industry I'll take a moratorium on drilling if it means taking steps to protect lives over keeping BP shareholder returns stable in the short term.

It's sad that people like you are so concerned with corporate profits that you could care less about the lives that were lost, just to save a few thousand dollars.

Posted by: Southeasterner | June 25, 2010 6:14 AM | Report abuse

Marcus's column once again prove my theory that "judicial activism" is the phrase that people throw at any decision, liberal or conservative, that they don't like.

Posted by: WashingtonDame | June 25, 2010 7:56 AM | Report abuse

I love this paper every time I read it I can only think about the two headed baby article that Madonna had when I was growing up, standing in the grocery store, reading enquirer wile my mom was paying for groceries. With money that said in God we trust. Not in Gov, we trust. The people who by this BS must be one in the same and the ones who feed you this CRP are also one in the same.

Look MOM the Enquirer all grown up IE the Washington Post

As I was driving to work today I passed four exploding oil wells off the gulf coast! Can you believe it and That horriable Obama has done nothing?

By the way I am not an Obama supporter!

Cause it happens all the time right? You see every day the rigs just exploding...

We have been drilling for over 100 years these rigs have survived hurricanes and tsunami's and your are worried about what exactly?

It was one accident......you are an idiot. look at track records not propaganda. Stand for something not on something. I don't have a single connection to the oil company's and can plainly see that this judges decision was the bravest strongest move any true American should be proud of.

Good Job!

Posted by: wirez05 | June 25, 2010 8:26 AM | Report abuse

And where is the conservative outcry over policymaking from the bench?
=========================================
Ms. Marcus,
Your faith in the capcity of the Republicans to feel any shame is so old-fashioned. The Republicans and their judges could say that Obama is bad for not regulating the oil companies one day and then demand a suspension of regulation the next and their followers and supporters would not even notice the inconsistency. These working people contiuously support those who would hurt them on a regular basis. The Republicans are completely amoral and don't care about our country. They have spent the past 30 years undercover debasing the very foundation of our laws for their own selfish, greedy gain while spouting their so-called Values.

Don't look for any honesty or integrity from this group. They don't know the meaning of the words.

Posted by: rlritt | June 25, 2010 9:18 AM | Report abuse

First, perhaps foremost, this judge should have recused himself. He apparently subscribes to the Scalia model that I'm above impropriety because I said so. Second, the decision is illogical and stands a snowballs chance of making through appeals. The judge has embarrassed himself.

Posted by: CardFan | June 25, 2010 9:30 AM | Report abuse

Wow! Ruth has really let the middle and the right get under her skin. Her whole defense of the government's overreaching is pelican pictures??? This is hardly judicial activism. Ruthie. You even had to admit the Interior Dept screwed up. I think you made Judge Feldman's case for lifting the arbitrary ban better than Judge Feldman. If you have hold a grudge on something, wait until you have some evidence. Otherwise, your writing says more about you than anything else.

Posted by: greendayer | June 25, 2010 10:24 AM | Report abuse

I agree with Ruth that the "arbitrary and capricious" standard should be a high hurdle. The fact is, the federal courts have eroded it over the years and the US District judge in question has ample precedent to cit in support of his finding. Still it's a close question and will be decided by the appellate courts.

What I really wonder is, Does commenter "liveride" know he is a dangerous nut?

Posted by: Roytex | June 25, 2010 11:03 AM | Report abuse

Interesting. I prefer the image of the rupture a mile below the ocean surface spewing crude oil into the unprotected ocean (the Gulf of Mexico being one of the most prolific marine life habitats on the planet). There is "irreparable harm" done to ever man, woman, and child that inhabits this earth. Algae, plankton, fish, mollusks, and crustaceans will die in vast numbers, are being killed by the toxic content of the crude oil. Oil will wash near and onto shorelines, suffocating and overpowering and poisoning fish, birds, and marine mammals; it is doing so even now. Irreparable harm has been caused. A moratorium to halt activity and provide some reassessment to prevent or limit future iterations of this event is demanded by any people who consider themselves reasonable. Yes, there may be immediate economic loss or hardship, but it is not irreparable; the judge was decidedly incorrect in his ruling.

Posted by: Jazzman7 | June 25, 2010 12:27 PM | Report abuse

There are only a limited number of offshore deep drilling rigs in the world. As you know Petrobras has made some immense oil discoveries offshore Rio. There are also other deep offshore drilling prospects around the world such as West Africa and the South China Sea.

Petrobras has now contracted 80% of the world's ultra deep water drilling rigs. The present imbalance of supply and demand has already caused a substantial increase in deep water offshore rig day rates. Who can say when the rigs that leave will ever come back to the Gulf after the 6 months have expired, and the rigs are under contract elsewhere? It takes years to develop deep water offshore prospects. It is not just drilling a couple of wells.

The Sec of Interior issued an emotionally based and politically aimed rule that was not based in expertise or rationality. The judge saw this.

I thought we had a large number of very serious economic problems in this country - such as unemployment, lower incomes, higher taxes reducing economic growth, oil imports as a substantial component of our balance of payments problem, etc. For all of which offshore oil exploration makes a significant contribution to the remedies.

Of course, if you are employed by the government or work for an NGO these seem like distant problems.


How can we keep producing so many leaders that lack so much common sense?

Posted by: allen1021 | June 25, 2010 1:22 PM | Report abuse

Great cartoon about activist Bubba judges: http://www.sltrib.com/sltrib/opinion/49814660-82/cartoon-bagley-pat-lake.html.csp

Posted by: newsraptor | June 25, 2010 2:05 PM | Report abuse

Here's the definition of judicial activism:

A ruling with which you disagree.

since the left dislikes the ruling, it must be judicial activism. Yeah, right.

And the misinformation about the judge's investments are par for the liberal course. Truth doesn't matter any more. All that matters is the liberal agenda.

The judge has received death threats. That's yet another typical liberal reaction.

Posted by: skipsailing28 | June 25, 2010 2:08 PM | Report abuse

There can be no doubt that the six month rule was arbitrary and capricious. What would a six month delay do to improve the conditions? On the other hand, how can a six month delay do irreparable harm to the companies or the local economy. It is not as if there were not other projects the company could be working on and which would assist the local economy. Not even bothering to take into account the actual result, this is definitely judicial activism and should have been overturned on appeal.

Posted by: Isaldur43 | June 25, 2010 2:35 PM | Report abuse

I also recall seeing lots of tragic images of devastated wildlife resulting from the exxon-valdez; regardless, a moratorium on shipping oil with tankers would have been a capricious and unreasonable official response to that act of criminal negligence, and the situation here seems no different. Drilling closer to shores, in shallow waters, would probably result in worse damage to the sort of wildlife we see in coastal areas, also leaving less time for response teams to intervene. I think the administration's response, as in many cases, is a political one (to save face with its ideological base) instead of being evidence and reason based. And one more thought: consider the difference between responses to this entire situation from people living in the gulf (who are most dramatically affected by the disaster, regardless of their political and ideological leanings) and responses from people at a distance, that are more likely to be affected by their ideology and outlook (as opposed to being affected by being in the midst of a mess they cannot deny). People in the gulf region, who must constantly face and confront the disastrous environmental AND the economic effects of the spill, are more inclined to see the administration's actions here as capricious and arbitrary, and less inclined to disagree with the judge's line of reasoning. It's clear, and to be expected, that certain PETA activist types would put the welfare of animals before that of people - but for all other, saner people, a somewhat narrow perspective (and one lacking in empathy for the people of the region) must account for their inability to see that there is also reason and justification on the judge's side. (Not that it would be impossible for the admin to come up with proper justifications for their policy, which would enable them to overturn the judge's result; but I am with the judge in thinking that reasons are needed and are not obvious in the way that the oiled pelicans are obvious, even if they might seem obvious to people far away from the gulf.)

Posted by: ZviYC | June 25, 2010 2:39 PM | Report abuse

First of all Ruth the moratorium was put in place based on the 'doctored' statements Commandant Salazar slipped in...but you failed to state that??? I wonder why? Perhaps it should have been your job - living at stake?

Secondly - why are they out there 500 miles drilling? Oh thats right another moratorium vs drilling in Anwar or closer to shore. We cant drill - we cant build nuke plants - you all hate coal..and you call the GOP the party of 'no'. Yet you all still want to fly your jets - drive your cars, etc, etc....and in the next breath tax the heck out of us via Cap n Trade. Now there's something you can say no to.

Posted by: short1 | June 25, 2010 2:51 PM | Report abuse

Ruth, I agree. It's a shame these judges don't see Obama's executive decrees for what they are...........edicts from a king.

Obama tries to overstep his bounds yet again and gets blocked by the courts........one of the critical "checks and balances" in the Constitution. This is quite different than when the courts stopped Mr. Bush, because he was so wrong.......and Obama is so......right?

MethinksNOT!!

Posted by: buggerianpaisley1 | June 25, 2010 6:50 PM | Report abuse

The judge said the moratorium was to broad since the evidence was not there to support the moratorium that was asked for.

The judge also pointed out the experts had not supported the moratorium as the government claimed.

Was the judge correct, yes.
The judge lifted the moratorium because he cannot change the moratorium. On the other hand, with evidence supporting the moratorium the government wanted, rather then contradicting it, or with a moratorium that had evidence backing it, the judge would approve it.

The judge was not activist, he is there to put a check on the executive branches actions in this case, which he did.

Posted by: win1 | June 26, 2010 10:30 AM | Report abuse

Ruth, don't you think you should recuse yourself from commenting on this case, since you are married to a high-level appointee in the Obama administration?

Posted by: AnnReid | June 26, 2010 10:32 AM | Report abuse

Folks are missing the point. The Judge was very correct in his decision. It is not judicial activism at all. And, I believe a moratorium of some sort should be imposed, but the Administration took the lazy man's way out. It used a shotgun where a surgical knife would have been more appropriate. There is no evidence that 500 to 1000 foot wells are dangerous. The one that blew out is a 5000 foot well! And it blew out most probably because BP, as it seems is its permanent business model both onshore and off, at drilling sites and refineries, is to cut as many corners to try to maximize profits, safety be damned! BP tried to save $5 in drilling costs. By risking its workers' and its contractors' workers' lives and the safety to the environment and businesses of tens of thousands of peripheral industry workers. BP made an intentional bet against all rational advice from many other experts it itself employed. It bet against all of us, and lost big time. Were I a BP shareholder, I would be getting rid of its present Board of Directors, CEO, and all its officers and top management for creating this business culture from Hell. They have killed hundreds now and destroyed the Gulf of Mexico. But, the rest of the oil drilling industry and all of its workers and suppliers and their workers and their families should not have to pay for BPs grossly negligent, in fact, criminal, failings.

That is the point of Judge Feldman's ruling. You don't use a sledgehammer, when a small knife to carve out the infected part will do. You don't saw off the whole leg to remove a pimple. And, the Administration has tacitly admitted that it has been sloppy and overreaching by its announcement that it was going to reconsider and try to refine the ban. That is the right thing to do, and Judge Feldman was right on target. Go after what is the real danger -- and I would start with anything that BP has anything to do with, and surgically carve away at what has real potential for harm, and leave the rest alone. Most drilling companies are responsible. Unfirtunately for the rest of us, BP is not one of them. It should be shut down.

Posted by: weedtort | June 27, 2010 6:20 PM | Report abuse

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