Patterico's Pontifications


The Moratorium Decision (Updated)

Filed under: Law,Obama — DRJ @ 1:44 pm

[Guest post by DRJ]

Here is the .pdf version of Judge Martin L.C. Feldman’s opinion issuing a preliminary injunction lifting the Obama Administration’s moratorium on offshore drilling. (H/T cboldt.) Note that all emphasis in the quotes is mine.

The issue before the Court was plaintiffs’ argument that the government’s action — specifically Secretary Salazar’s order imposing a 6-month moratorium on offshore drilling and related activity — was arbitrary and capricious under the Outer Continental Shelf Lands Act (OCSLA), the federal law that governs offshore oil and gas leasing, and the Administrative Procedures Act (APA), the federal law that governs how the government can legally make and notify its citizens of rule changes. The APA allows government great latitude in making decisions, except decisions cannot be “arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with the law.”

In applying the “arbitrary, capricious, etc” standard, the law provides that a court cannot substitute its judgment for the government’s. Instead, the court will look at the evidence and uphold the government’s action (in this case, a moratorium on drilling) if it can find a “rational basis” for what the government did. Judge Feldman quoted the U.S. Supreme Court’s statement of the standard:

The Supreme Court has explained that:

Normally, 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. The reviewing court should not attempt itself to make up for such deficiencies . . . . [But the court] will, however, ‘uphold a decision of less than ideal clarity if the agency’s path may be reasonably discerned.’

Typically, this is an easy standard for government to meet. Yet here, at page 13, Judge Feldman found that the government “failed to give any consideration to an obvious alternative.” Specifically, the Court found (at page 16 et seq) that the government’s stated reason for the moratorium was the unacceptable risk posed by offshore deepwater drilling operations and the government’s inability to handle another blowout if one occurred. Essentially, Judge Feldman responded that the government moratorium was overbroad and failed to consider less onerous alternatives:

After reviewing the Secretary’s Report, the Moratorium Memorandum, and the Notice to Lessees, the Court is unable to divine or fathom a relationship between the findings and the immense scope of the moratorium. The Report, invoked by the Secretary, describes the offshore oil industry in the Gulf and offers many compelling recommendations to improve safety. But it offers no time line for implementation, though many of the proposed changes are represented to be implemented immediately. 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. While the Report notes the increase in deepwater drilling over the past ten years and the increased safety risk associated with deepwater drilling, the parameters of “deepwater” remain confused. And drilling elsewhere simply seems driven by political or social agendas on all sides.

The opinion continues by detailing more conflicts between the stated reasons for the government’s moratorium and their impact, followed by this conclusion:

The Court cannot substitute its judgment for that of the agency, but the agency must “cogently explain why it has exercised its discretion in a given manner.” State Farm, 463 U.S. at 48. It has not done so.

The Deepwater Horizon oil spill is an unprecedented, sad, ugly and inhuman disaster. What seems clear is that the federal government has been pressed by what happened on the Deepwater Horizon into an otherwise sweeping confirmation that all Gulf deepwater drilling activities put us all in a universal threat of irreparable harm. While the implementation of regulations and a new culture of safety are supportable by the Report and the documents presented, the blanket moratorium, 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.

On the record now before the Court, the defendants have failed to cogently reflect the decision to issue a blanket, generic, indeed punitive, moratorium with the facts developed during the thirty-day review.

The Court further points out that the government failed to balance “the concern for environmental safety with the policy of making leases available for development” or to consider alternatives such as targeted suspensions, and indicated that evidence of balance might have yielded a different result. (Thus, on page 22 of the opinion, the Court states that targeted suspensions of activities “could outweigh the impact on the plaintiffs and the public” — suggesting that if the government had not acted in such an overbroad manner, the injunction might not have been granted.)

Finally, in granting a preliminary injunction, the law requires Judge Feldman find that plaintiffs showed:

(1) a substantial likelihood of prevailing on the merits;

(2) a substantial threat of irreparable injury if the injunction is not granted;

(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.

Preliminary injunctions are rarely granted and the appeals court will carefully scrutinize the standards applied and findings made by the Court. But Judge Feldman’s statement of the applicable law is basic and accepted by the federal courts. Thus, the appeals court will focus on whether the Court’s factual findings are appropriate erroneous and, FWIW, I think the government will have a difficult time overturning this decision on appeal.


UPDATE: As Arch points out in the comments, Judge Feldman also found that the government incorrectly stated expert opinion (at page 3):

“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.”

As the Court states, incorrect statements are awkward at best for the government’s case but, as I understand the law, Judge Feldman still had the burden of reviewing all the facts and circumstances and deciding if there was a rational basis for what the government did. The fact that the government’s experts actually opposed the government’s position didn’t help, but I don’t think it is the overriding reason for the decision.

21 Responses to “The Moratorium Decision (Updated)”

  1. With tongue firmly in cheek, isn’t this the type of judicial activism us conservatives didn’t like when it was judges knocking down Bush-era policies and laws?

    Or is it only activism when the judge rules against policies we like, and an appropriate case of judicial rebuke of executive branch overreach when we don’t like the policy?

    steve (369bc6)

  2. Thank you, DRJ.

    JD (51c88c)

  3. DRJ

    Not disagreeing one iota with your legal analysis, but I think from a more tactical p.o.v. this is what happened, borrowing from my commentary in the last post.

    I think the judge got stuck on this. The moratorium goes on and on about how drilling at below 1,000 ft suddenly becomes more dangerous. So… they ban all drilling below 500 ft. There is literally nothing in the report that at all supports the 500 foot number. Now maybe if it was 900 ft, or 800 ft, the judge would have said, “well, you have to leave a margin for error” but 500 ft was not supported by anything. indeed maybe 500 ft is an appropriate margin for error, but the moratorium didn’t even say that.

    And it didn’t help to have the scientists saying that they didn’t actually sign on to that conclusion. And there is the simple logic that just because one failed, why should they think any of the other ones would.

    I will also repeat that it might be possible for Salazar to come back with a better written moratorium and it might do better. But I think this one is dead in the water.

    I think they will have zero chance of overturning at the circuit court level, and very little chance at the supreme court level, at least with it as written.

    I would add for the education of others that a preliminary injunction is designed to deal with a situation, well, pretty much like this. I mean let’s say that the petitioners had to go through a full trial before lifting the moratorium. Well, that will take longer than 6 months, for sure, so basically the damage will have been done. And it would be very hard to prove to everyone how badly they were damaged, so it would be hard, if not impossible to make them whole after the fact. In other words, if they had to wait for a trial, it would be losing by default. So a preliminary injuction is designed to save them when they would lose by default otherwise. but only if it passes that legal test.

    Aaron Worthing (e7d72e)

  4. steve

    i am not sure how far the tongue is in cheek, so let me say that conservatives have no problem with striking down anyone’s law if it actually violates the constitution.

    Indeed, i voted for bush, twice, and voted for mccain. but i cheered when Citizens United came down.

    Aaron Worthing (e7d72e)

  5. If drilling remains stopped while all of this plays out, doesn’t that pretty much do what they intended?

    steve – your question is why I asked DRJ about this.

    JD (3b62be)

  6. The judge ruled that the Obama Administration misled the public. The technical experts did not agree with this moratorium.

    Obama lies? Shocked! I’m shocked!

    Could this mean that perhaps Senator Kyl is telling the trut?

    arch (24f4f2)

  7. arch – I am shocked, SHOCKED, to find out that they were dishonest.

    JD (3b62be)

  8. Arch raised a good point and I updated the post to add my thoughts.

    DRJ (d43dcd)

  9. I admit I haven’t read the whole judgement.

    But in exerpts like the one published above, I haven’t seen whether Judge Feldman took judicial notice of Secretary Salazar’s unconscionable addition of two paragraphs to the statement of eight National Academy of Engineering members, after they had signed it.

    It was those two paragraphs that originated the recommendation for the drilling moratorium. Were I in Feldman’s place, I’d have lifted it too, and said suitably salty words about that counterfeit ‘testimony’ inserted by Salazar into the engineers statement, for the specific purpose of supporting the moratorium.

    Insufficiently Sensitive (8906ed)

  10. steve,

    To me, judicial activism is when the court uses a decision in a specific case to influence or change social, economic or political policy. Both liberal and conservative judges can be guilty of judicial activism, and some cases (like this one) can blur the line because they can have a broader impact. But the laws Judge Feldman relied on are clear, undisputed, and long-accepted rules that apply to review of government decision-making. In addition, his application of the law to the specific case is well-reasoned and specific. That to me is what a good Judge of any political persuasion should do, regardless of the outcome.

    DRJ (d43dcd)

  11. Insufficiently Sensitive,

    He did address it and I included it in the Update that was posted about the same time you left your comment.

    DRJ (d43dcd)

  12. The language used by the Judge, was that measured, pointed, or typical? It seemed to me that he stopped just short of calling the govt position a lie.

    JD (04ebf2)

  13. I don’t think this is some kind of judicial activism. The judge applied the law to the actions of the Obama admin. and they came up short. You can’t support a decision with expert opinion when the experts come out and say you’ve lied or misrepresented their opinion. You have to have a reasonable basis for the govt. action, or it truly is arbitrary and capricious (although what isn’t arbitrary and capricious with this admin.?).

    rochf (ae9c58)

  14. DRJ: my not-so-tongue in cheek response is that while you defend this as appropriate, the other side is likely blasting it as otherwise… and while we blasted many of the decisions overturning Bush policies as activism, the other side made the same arguments in support of the decision as you are making now.

    I really do think the definition of activism (as well as the broader ‘constitutionality’) depends on the beholder.

    steve sturm (116925)

  15. They misrepresented the data of the scientists they were ostensibly using to make their case, yes they
    are going after him now, because he actually knows
    something about the subject, fancy that

    ian cormac (38cac7)

  16. JD

    Judges will never call anyone a liar unless it is absolutely necessary for the decision. But he did everything but, and experienced court watchers know exactly what the judge is saying. Its almost like code words, we know what the judge is saying.

    Aaron Worthing (A.W.) (f97997)

  17. steve,

    I understand your point but I’m trying to get beyond “people will always disagree about this so why bother?” The standard I expressed can be fairly applied to both sides. People can certainly disagree with me and Judge Feldman, but to be credible they need more than “because I want it” as their reasoning.

    DRJ (d43dcd)

  18. Isn’t what this judge did – review the executive moratorium on it’s legal merits – exactly what judges are supposed to do? Isn’t this precisely what the separation of powers accomplishes, places a check and balance on the executive and legislative branch.

    I’d have an issue if some judge decided on his own to issue a moratorium all by himself.

    Vivian Louise (643333)

  19. Yes, but .. IMO the important part isn’t that Feldman’s decision serves as check on the executive branch. Any judge can do that whenever the government is in the courtroom.

    The point is Judge Feldman identified the basic, black-letter law and applied it point-by-point. Doing that hamstrings judges’ decision-making more than laymen realize. On the other hand, problems arise when judges mess around with the applicable law (e.g., when the Supreme Court decides foreign law should apply instead of U.S. law) or ignore the testimony and evidence (as Salazar did with the expert opinions he relied on to issue the moratorium).

    DRJ (d43dcd)

  20. yeah, seriously drj is giving a class in administrative law 101. no one should be surprised when a judge finds that an agency acted capriciously, when they actually lie when justifying it. i mean that is kind of a problem.

    The point is drj is not giving any radical reinterpretation of the law. This is plain vanilla analysis.

    Aaron Worthing (A.W.) (f97997)

  21. The judge did in fact state that they lied.

    In the judgement, he notes that the experts said that their support of a moratorium was misrepresented. The judge in the very next sentence is blunt and states “It was factually incorrect”

    Factually incorrect is a nice way of saying “You lie!”

    NavyspyII (df615d)

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