Thursday, July 8, 2010

Stockholm Syndrome vs. The Ecosystem - 2

The stakes are high in today's oral argument before the U.S. Court of Appeals for the Fifth Circuit in New Orleans, in the case Hornbeck Offshore vs Salazar (Secretary of Interior).

The Obama Administration ordered a moratorium on new oil drilling in the deep waters of the Gulf of Mexico.

Federal District Court Judge Feldman ordered that moratorium stopped, holding that it was arbitrary, capricious, and unlawful.

The Obama Administration appealed, the Fifth Circuit judges expedited the matter, so this afternoon oral argument will be heard on the issue of whether the appellate court should overturn the district court by staying the injunction, and instead allow the moratorium to proceed pending a full appeal.

The case at this point is composed of two elements, court deferment to administrative agency decisions, and the extreme remedy of an injunction.

Dredd Blog has acquired documents filed in the case, and will share some of the argument which the court may or may not find convincing.

The Obama Administration in its Reply, filed 7/6/10, sums up its position as follows:
In response to an unprecedented and ongoing disaster, the Department of the Interior acted to prevent the possibility of further environmental and economic harm from another oil spill by suspending deepwater drilling in the Gulf for 6 months. The district court’s order preliminarily enjoining that action misperceived Interior’s authority, the rationale for the suspensions, and the relative harms present in the Gulf. Plaintiffs and amici rely on those same misperceptions in opposing the motion. When Interior issued the suspensions in this case, oil had been flowing into the Gulf for more than a month. And it continues to do so today — with catastrophic consequences to the environment and local economy — despite repeated efforts, using every available technology, to stop it. Because this deepwater spill has been impossible to fully contain, Interior had to take immediate action to minimize the risk of another spill, especially while efforts to contain and clean up this one are ongoing. The stakes are even higher now that it is hurricane season. The suspension orders give Interior time to further implement 22 already-identified new safety measures and to develop others as it gathers more information. Therefore, that decision was a rational exercise, under emergency circumstances, of Interior’s substantial discretionary authority under the Outer Continental Shelf Lands Act and its own regulations for suspending lease operations. The district court was wrong to substitute its judgment for Interior’s and enjoin those suspensions. This Court should stay the district court’s order.
(REPLY IN SUPPORT OF MOTION FOR A STAY PENDING APPEAL, page 2). To support its argument it cites FCC v. Fox Television Stations, Inc., where the Supreme Court held:
The Administrative Procedure Act, 5 U. S. C. §551 et seq., which sets forth the full extent of judicial authority to review executive agency action for procedural correctness, see Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 545-549 (1978), permits (insofar as relevant here) the setting aside of agency action that is "arbitrary" or "capricious," 5 U. S. C. §706(2)(A). Under what we have called this "narrow" standard of review, we insist that an agency "examine the relevant data and articulate a satisfactory explanation for its action." Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983). We have made clear, however, that "a court is not to substitute its judgment for that of the agency," ibid., and should "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned," Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 286 (1974).
(FCC v. Fox Television Stations, Inc., 129 S.Ct. 1800, 1810 (2009)). Thus, the issue for decision will be whether or not the district court inserted its own decision in place of a valid decision of an administrative agency.

The Obama Administration went on to argue that Hornbeck has not shown it will suffer irreparable harm, admitting that it has no interest in the leases themselves.

The court denied Secretary Salazar's motion to lift the stay, holding as follows:
1. The motion for stay pending appeal is denied because the Secretary 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.

2. The Secretary has the right to apply for emergency relief if he can show that drilling activity by deepwater rigs has commenced or is about to commence. Any renewed motion for stay will be evaluated on existing circumstances.

3. It is further ordered that this appeal be expedited to a merits panel. The clerk will establish an expedited briefing schedule so the appeal of the preliminary injunction can be argued on its merits during the week of August 30.
(Court Order, filed 7/8/10). The decision was 2-1, Judge Dennis dissenting, who said he would have lifted the stay.

Obama Administration opens up more of Alaska to oil drilling.

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