NCPA - National Center for Policy Analysis


June 23, 2010

As legal rebukes go, it's hard to get more comprehensive than the one federal judge Martin Feldman delivered yesterday in overturning the Obama Administration's six-month moratorium on deep water drilling in the Gulf of Mexico, says the Wall Street Journal. 

In a remarkably pointed 22-page ruling, the judge made clear that even presidents aren't allowed to impose an edict that isn't justified by science or safety. 

Oil-services companies brought the case, which is supported by the state of Louisiana, arguing that the White House ban was "arbitrary and capricious" in exceeding federal authority, and Judge Feldman agreed.  He noted that even after reading Interior Secretary Ken Salazar's report on safety recommendations (which included the ban), and Salazar's memo ordering the ban, "the Court is unable to divine or fathom a relationship between the findings and the immense scope of the moratorium." 

Quite the opposite, said the judge: 

  • The Report makes no effort to explicitly justify the moratorium.
  • It does not discuss any irreparable harm that would warrant a suspension of operations and doesn't provide a timeline for implementing proposed safety regulations.
  • There is no evidence that Salazar balanced the concern for environmental safety with existing policy, and no suggestion that he considered any alternatives.
  • The feds couldn't even coherently define "deep water."  

The judge said that the illogic of the moratorium is 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."  Because this will cause "irreparable harm" to jobs and to domestic energy supplies, such a sweeping ban couldn't stand. 

The judge also went out of his way to express uneasiness over the Administration's claim that its safety report (which recommended the ban) had been "peer reviewed" by experts.  Those experts have since publicly disavowed the ban, explaining that the ban was added to the report only after they had signed off on an earlier draft. 

Source: Editorial, "Obama's Moratorium, Drilled," Wall Street Journal, June 23, 2010. 

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