Patterico's Pontifications

6/22/2010

Reviewing the Moratorium Decision

Filed under: Law — DRJ @ 3:56 pm



[Guest post by DRJ]

I know everyone is tired of this but indulge me for one last post.

The 5th Circuit standard of review of the grant of a preliminary injunction is set forth in Concerned Women for America, Inc. v. Lafayette County, 883 F.2d 32, 34 (5th Cir.1989) following a 1975 Supreme Court case:

Our standard of review for the grant of a preliminary injunction is “whether the issuance of the injunction, in the light of the applicable standard, constitute[s] an abuse of discretion,” Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975).

See also Affiliated Professional Home Health Agency vs Shalala, 164 F.3d 282 (5th Cir. 1999):

Our standard of review for a district court’s granting of a preliminary injunction is “whether the issuance of the injunction, in the light of the applicable standard, constitutes an abuse of discretion.” Concerned Women for America, Inc. v. Lafayette County, 883 F.2d 32, 34 (5th Cir.1989). In performing that review, findings of fact that support the district court’s decision are examined for clear error, whereas conclusions of law are reviewed de novo. Id.

This standard of review means the appellate court will decide for itself — i.e., decide de novo — the law that applies in the case being appealed, but it will only reverse Judge Feldman’s factual findings if they are clearly erroneous. The factual findings in this case arguably include that the government failed to consider other alternatives to a moratorium, did not balance competing interests, and did not factor in the impact on the public and affected parties.

The standard of review is what will make this a difficult decision for the government to reverse.

— DRJ

35 Responses to “Reviewing the Moratorium Decision”

  1. The White House immediately promised to appeal the ruling, the process of which could take longer than the moratorium itself. And even if that ruling were to come within the six-month period, Uhlmer notes that the Minerals Management Service could effectively maintain the moratorium by not providing approval for new drilling, or by simply canceling permits.*

    If President Obama wants to destroy the offshore drilling industry in America there’s precious little anyone can do about it apparently.

    Welcome to life in a failed state.

    happyfeet (71f55e)

  2. I think the MMS can do that, but it runs the risk of a mandamus action or motion for contempt if it doesn’t come up with a good reason — especially insofar as existing wells are concerned. But the ball is clearly in the MMS’ court when it comes to new drilling.

    DRJ (d43dcd)

  3. all Ear Leader’s regime has to do is make sure the “right” judges do the review….

    are there any wise latinas in the 5th circuit?

    redc1c4 (fb8750)

  4. and, btw, this granting of an injunction is both unexpected and unprecedented…..

    :=D

    redc1c4 (fb8750)

  5. I would assume the mandamus action could be appealed, no?

    This is… this is dark. Can you imagine being a drilling services worker with kids and a mortgage?

    happyfeet (71f55e)

  6. happyfeet,

    The drilling companies brought this action in a New Orleans court and a similar case is pending in Houston. These people and companies are obviously willing to ask the courts to protect their rights. Let’s don’t count them out just because they won the first round.

    DRJ (d43dcd)

  7. I wonder what weight the court assigned to the fact the government lied to the judge in an attempt to sway his opinion with bogus report data. It seems the Judge figured it out, and it would seem that reliance on such bogus reports is not going to be pleasant.

    Inquiring minds want to know how this all works, when the government gets involved with the courts.

    bill-tb (541ea9)

  8. I’m fairly certain the plaintiffs brought the experts in as witnesses; elicited testimony about their discussions with Secretary Salazar and his staff; and compared that to contrary statements in the moratorium documents released by the Obama Administration. In other words, the fact the government made “misleading” statements was proven but the Judge chose to label them as “factually incorrect.” And he was right to do that because from a legal standpoint, the important point is that the government relied on factually incorrect information to issue its moratorium. Garbage in, garbage out.

    Plus, this avoids giving the government any argument that he was biased against them.

    DRJ (d43dcd)

  9. Is it a fact that the preliminary injunction will be stayed during appeal?

    nk (db4a41)

  10. Apparently, having been slapped silly in court and realizing they had no chance on appeal, Obama plans on issuing a new moratorium–claiming it will address the problems in the previous!….And, I suppose, if that one gets struck down, then he can always issue another one—in fact, keep doing so week after week for six months. Very clever guys, this administration…..

    Mike (e71888)

  11. Garbage in, garbage out.

    I would not let Salazar et al handle garbage,
    it is way above their pay grade.

    AD - RtR/OS! (2480c8)

  12. I’m sorry I just can’t believe the president would throw those people out of work so cavalierly and the media thinks it’s just ducky.

    I don’t remember it but remember about the air traffic controllers?

    happyfeet (19c1da)

  13. Is it a good thing that Comrade Obama is so focused on keeping those poor oil drilling and oil service workers unemployed based on faulty evidence merely to advance his pagan junk science religion of global warming which is also based on faulty evidence? I say no, but the mileage of others may vary.

    daleyrocks (1d0d98)

  14. this is the sort of thing what makes me go to my dark place and here this is my dark place song… nishi gave it to me

    happyfeet (19c1da)

  15. A new moratorium might be better for everyone if it has clear, fair parameters. Not only would it avoid the situation where the MMS simply shuts down the entire permitting system, it would focus the moratorium on things that might actually be a problem.

    For instance, the MMS could impose a 6-month ban on exploratory wells in specific formations but allow existing wells and future wells in established formations, subject to normal permits and approvals. As long as the parameters aren’t too tight, it would be better than litigating every MMS decision.

    Of course, there is a problem with the duration of the ban (pending the final Oil Spill investigation) but that issue is probably not ripe until the investigation is or should be completed.

    DRJ (d43dcd)

  16. The opinion is nice, but the order is what’s important. Anybody have it? For example, if it mandates the issuance of permits ….

    nk (db4a41)

  17. The Judge granted the injunction which means there is no moratorium. He won’t write the moratorium for them. The Administration has to do that.

    DRJ (d43dcd)

  18. A restrained, non-activist decision, which in the end is meaningless?

    nk (db4a41)

  19. As bill-tb said above and several posters on the previous thread, the government convened an “expert panel”. Said panel studied the issues and presented a report. The government said we like your report.

    Then, the government added to the report without telling the authors of the report, and then issued a directive that was not supported by the report or its authors.

    Sounds to me that the judge said:
    -the experts said “x”
    -you folks said you liked what the experts said
    -then you altered what the experts said and made a policy not supported by what the experts said
    – and you gave no reason or explanation why you went against what the experts said
    – so you’re a bunch of lieing weasels (translated into “judgespeak” as “I’m disturbed by the factually incorrect statements”

    MD in Philly (5a98ff)

  20. here is the article about the new moratorium Drudge has…

    the president has openly declared war on the economy it seems

    happyfeet (19c1da)

  21. “which in the end is meaningless?”

    nk – Nothing meaningless about it I can see. It tells Obama if he wants to save the planet to do it legally.

    daleyrocks (1d0d98)

  22. Where did bobby b go with his incisive analysis?

    daleyrocks (1d0d98)

  23. “Then, the government added to the report without telling the authors of the report, and then issued a directive that was not supported by the report or its authors.”

    MD in Philly – It reminds me of what the EPA did last year when they deleted their own expert’s summary to arrive at the conclusion that carbon dioxide was a pollutant that needed to be regulated or the planet would burn baby burn.

    It is a good thing this administration is not politicizing science, immigration, stimulus, or the Justice Department. We might really be in trouble then.

    daleyrocks (1d0d98)

  24. But there have been suggestions that the government can basically bypass it, and equity, usually, does not perform useless acts. Which is why I’m asking about the order.

    As for its enforcement, contempt or mandamus has not been needed since the time of Andrew Jackson. The government just says “Yes, Your Honor”.

    nk (db4a41)

  25. happyfeet,

    Thanks for the link. If they try to keep the same moratorium without any changes and new reasons, there is authority that the court can ignore after-the-fact explanations if the contemporaneous facts show no rational basis.

    DRJ (d43dcd)

  26. nk,

    The Judge can’t write the moratorium — that’s an executive function — but if the government acts like the moratorium is still in effect then I think the appropriate remedy would be a mandamus or contempt action.

    DRJ (d43dcd)

  27. I hope so but now we have the thugministration saying oh we have no idea why this happened we have to study it for many many moons but ooh look we found 8 smoking guns with footnotes overnight

    happyfeet (19c1da)

  28. Judge Feldman to the .gov: You Lie!

    Joe Wilson (4fbede)

  29. Salazar and Barcky will just keep issuing new moratoriums until they are upheld, while simultaneously appealing the injunction, which will allow them to destroy the economy of the gulf while claiming to be trying to protect the environment.

    Ironically, his own experts say that not only do they not agree with this, they have stated that shutting this down in this manner makes them actually more dangerous.

    JD (d55760)

  30. this is not America something has gone wrong

    happyfeet (19c1da)

  31. In this instance the gov’t failures as identified by the judge are errors of omission — failure to do something or explain something adequately. They are correctable, and the new Salazar moratorium is going to address that.

    Where the plaintiffs need to focus their efforts is on the balance of harm to issuing the injuction and not issuing it.

    shipwreckedcrew (436eab)

  32. nk

    > As for its enforcement, contempt or mandamus has not been needed since the time of Andrew Jackson. The government just says “Yes, Your Honor”.

    might be simpler than that. how would the moratorium be enforced? by jail for non-compliance? Fines? So all of that needs courts to enforce, so courts could simply refuse to allow any enforcement.

    Aaron Worthing (e7d72e)

  33. btw, they are already smearing the judge in the case.

    http://abovethelaw.com/2010/06/morning-docket-06-23-10/

    Hey, did you know that 2 years ago he owned stock in oil companies! Yeah, its about that lame.

    Aaron Worthing (e7d72e)

  34. I was not in law school yet when President Gerald Ford was asked whether he would ever disobey a final court decision. He said that no, that would be unthinkable. The courts are the final word and the executive abides by their decisions.

    I don’t think Obama will change that. Think about the Court’s U.S. Marshalls leading Salazar to a jail cell. That is unthinkable. We are not a banana republic.

    nk (db4a41)

  35. nk

    i wouldn’t be so sure about that conclusion.

    For instance, in the ABA v. the FTC, the district court ruled the red flags rule null and void to a broad range of industries. the FTC has been pretending the decision only applied to the one represented: law. but if you read the case it is clear it went well beyond that. essentially it nullified all of the new rules on the subject since obama came to power. but they are pretending it didn’t.

    so it wouldn’t shock me if salazar next pretends that a new order is enforceable, even if it literally has all the problems of the last one.

    Aaron Worthing (e7d72e)


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