Good Thing His Ruling Went This Way

Otherwise he’d be an activist judge:

A New Orleans federal judge lifted the six-month moratorium on deepwater drilling imposed by President Barack Obama following the largest oil spill in U.S. history. Shares of drilling services companies jumped on the news.

Obama temporarily halted all drilling in waters deeper than 500 feet on May 27 to give a presidential commission time to study improvements in the safety of offshore operations. More than a dozen Louisiana offshore service and supply companies sued U.S. regulators to lift the ban.

U.S. District Judge Martin Feldman today granted a preliminary injunction, halting the moratorium. Government lawyers told Feldman that ban was based on findings in a U.S. report following the sinking of the Deepwater Horizon rig off the Louisiana coast in April.

“The court is unable to divine or fathom a relationship between the findings and the immense scope of the moratorium,” Feldman said in his 22-page decision. “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.”

I love that last paragraph, which appears to be legalese for “Drill, baby, drill!” Let’s re-write it so it accurately reflects the current state of affairs:

“The blanket moratorium, with no parameters, assumes that because all the parties involved have demonstrated they not only don’t know what caused or these disasters or how to prevent these disasters, they don’t know how to stop them, so it is in the interest of everyone involved that we recognize that all companies and rigs drilling new wells over 500 feet universally present an imminent danger.”

Because that is the real situation. I have no idea how it can be considered illegal for our regulatory regime to ban behavior that could lead to catastrophes until those being regulated can assure us the activity is safe. Stating the government must prove that each individual well is unsafe before banning it turns the whole concept of regulation on its head.

*** Update ***

Isn’t this precisely the situation in which recusals are required:

The federal judge who overturned Barack Obama’s offshore drilling moratorium appears to own stock in numerous companies involved in the offshore oil industry—including Transocean, which leased the Deepwater Horizon drilling rig to BP prior to its April 20 explosion in the Gulf of Mexico—according to 2008 financial disclosure reports.

U.S. District Judge Martin Feldman issued a preliminary injunction today barring the enforcement of Barack Obama’s proposed six-month moratorium on deepwater drilling, arguing that the ban is too broad.

However, Michael Moore is fat, so we aren’t really an oligarchy.

*** Update #2 ***

From the comments:

imagine if this logic were applied to the war on drugs…you can’t declare a drug addictive, because people have gotten addicted. you have to show that everyone who uses the drug in question, becomes addicted….

Exactly.

90 replies
  1. 1
    The Main Gauche of Mild Reason says:

    The thing that gets me, is that SOME of us have opposed offshore drilling for years exactly because there exists no contingency to prevent a massive environmental disaster. This is not some shocking revelation. What, did they think we were just irrationally anti-corporate hippies?

    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

    You don’t even need to rewrite it, John. How is it possible that the second clause there doesn’t follow from the first? When one oil rig mysteriously fails for an unknown reason, why is it irrational to assume other rigs constructed the same way don’t represent an imminent danger? Logic fail.

  2. 2
    sherifffruitfly says:

    I believe you’re missing a “don’t” in your rewrite.

    edit: you’re welcome. :P

  3. 3
    David in NY says:

    Well, at least Obama can fire generals, even if he can’t fire judges.

  4. 4
    Hunter Gathers says:

    Judge Martin Feldman owns oil stocks. Including Transocean. No one could have predicted..

  5. 5
    Glidwrith says:

    “demonstrated they not only DON’T know how to prevent these disasters, they don’t know how to stop them”

    I think you missed a “don’t”. Hope I don’t break the thread.

  6. 6
    sherifffruitfly says:

    It’s also amusing to note the judge’s “no parameters” bullshit, from which he blithely moved on to the “over 500 feet” parameter, and then passed on by, without his logic circuit even skipping a beat.

  7. 7
    Mark S. says:

    Maybe the moratorium was put in place because we don’t have any idea how to stop a leak that far deep in the ocean.

  8. 8
    peach flavored shampoo says:

    So much for unitary executive power.

  9. 9

    So where does it go next? Appeals?

    Is the judge telling the executive branch of government that they cannot stop the drilling?

    Now is the time to pull out the military to prevent any more deep water drilling until we figure this mess out.

  10. 10
    Chat Noir says:

    Citing the economic harm to businesses and workers in the Gulf that the moratorium would cause, Judge Feldman — a 1983 appointee of former President Ronald Reagan — wrote that the Obama administration had failed to justify the need for the sweeping suspension, which he characterized as “generic, indeed punitive.”

    I guess dead wildlife and marshes don’t matter.

  11. 11
    neill says:

    gets tough enforcing the law when federal judges are god damn lawless assholes…

  12. 12
    Booger says:

    Effem. Effem all. Then plug the effing hole with their junk shot. Effers. Effing effers.

    PS: This guy’s got Supreme court written all over him.

  13. 13
    cleek says:

    my favorite wingnut response so far “Judge Martin Feldman sides with the people against the powerful” (that’s Robert Stacy McCain, to whom i will not link).

    baffling

  14. 14
    Punchy says:

    Judge Feldman — a 1983 appointee of former President Ronald Reagan — wrote that the Obama administration had failed to justify the need for the sweeping suspension

    So they have no fucking windows in LA that face the GOM, eh?

  15. 15
    Paul L. says:

    I have no idea how it can be considered illegal for our regulatory regime to ban behavior that could lead to catastrophes until those being regulated can assure us the activity is safe. Stating the government must prove that each individual well is unsafe before banning it turns the whole concept of regulation on its head.

    So Drilling in 100 ft of water(44 PSI) is the same as Drilling in 1000 Ft of Water (440 PSI) is the same as Drilling in 5000 Ft. of Water (2200PSI).
    SCIENCE!!!

  16. 16
    Dr. Psycho says:

    Surely there is some mechanism by which Federal judges can be removed for gross malfeasance under the influence of a conflict of interest — lawyers, please, what is it?

  17. 17
    Comrade Dread says:

    PS: This guy’s got Supreme court written all over him.

    Nah. Wingnut celebrity and Fox News Legal Correspondent.

    In all seriousness, it’s frustrating, but that’s why we have a Court of Appeals and the Supreme Court.

    I just can’t imagine how anyone looks at the mess in the Gulf, the ineptness and unpreparedness of BP, and doesn’t start demanding hard and better proof of concept and safety from everyone.

    The mindset seems to be one of the lowest common denominator of ‘as long as nothing f***s up, it must be okay.’

  18. 18
    eemom says:

    @Hunter Gathers:

    If that’s true then it’s outrageous that he didn’t recuse himself.

    I think this will be reversed, unless the entire Fifth Circuit Court of Appeals is in the pocket of Big Old Oily Oil too.

  19. 19
    Dan says:

    Maybe not a perfect analogy, but I would compare this to the way NASA handled it when the shuttle blew up a few years ago. They didn’t send another shuttle up until they figured out what went wrong and came up with a plan to prevent it from happening in the future.

    The difference between that situation and this one is that NASA is a government program, while these rigs are privately owned/run and stand to make a ton of money

  20. 20
    LikeableInMyOwnWay says:

    “The court is unable to divine or fathom a relationship between the findings and the immense scope of the moratorium,” Feldman said in his 22-page decision. “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.”

    The judge is dead fucking wrong. We know exactly why, it’s because the regulatory and oversight model being followed guarantees that blowouts and spills will happen, and worse, that almost nothing can be done about them without months of risky work, under the best of conditions.

    It would be the equivalent of taking away the Federal Aviation Regulations and FAA oversight of airlines and then having a judge say that we can’t prove that accidents will result, so just keep flying. Yes, actually, we can prove it. And we have.

  21. 21
    Libby says:

    I believe the correct term for this would be OILgarchy.

  22. 22
    blahblahblah says:

    That’s “Oligarhy”. Don’t you watch Beck? You really ought to learn how to spell, Cole.

  23. 23
    jl says:

    Can the WH modify the order and reimpose the temporary moratorium, and then let some one take the new moratorium to court? In the meantime, risky projects that might (or, probably) have been rubber stamped by the MMS would be stopped.

    If so, I hope Obama does that.

    Maybe let individual projects go ahead after their drilling plans are reviewed? Or modify it so projects can keep drilling but have to stop before they enter the reserve?

  24. 24
    Zam says:

    I don’t know why you all are getting so worked up about this spill, especially for people who believe in evolution. The marine life will simply evolve and become immune to the oil, or possibly even grow to encompass its presence in their survival. We may even in the future see dolphins and pelicans that can aid in our extraction of deep water oil since their new found hunger for the substance will drive them search it out like a welfare recipient is drawn to crack.

  25. 25
    Hunter Gathers says:

    @eemom:

    I think this will be reversed

    Don’t bet on it. The appeals court may not be in the pocket of Big Oil, but since most federal judges are incredibly well off, they will take any chance they can to stick it to the less fortunate. This will go all the way to the Supreme Court, and will end in a 5-4 decision in favor of Big Oil. Roberts will come to the same conclusion that Feldman did. Bank on it.

  26. 26
    frankdawg says:

    So let me ask you this. All this ruling does is remove the moratorium, right? Aren’t there enough other Federal regulations that could be used to make the companies jump through hoops for 6 months? Say environmental impact statements & OSHA inspections and craft certifications? You may not be able to put up one big barrier but how about moratorium by a thousand rules?

    Use that time to craft & pass some sort of measure or institute some sort of requirement (more likely since it would not require 60 senators to abandon their deeply held belief in the power of oil money) that would add protection before allowing more drilling.

  27. 27
    catclub says:

    I think the oil industry will come to regret winning this judgment.

    case A) 6 month moratorium ends and MMS is under the gun to approve re-start of drilling.

    case B) Go to court against MMS, win judgment. Now just try to get MMS bureaucrats to approve any new change in your drill plan. I think drilling will be even slower than if the moratorium runs its course.

    What if there is another spill now – who gets blamed?
    Overeager oil drillers. Drilling will be permanently stopped
    in the Gulf at least.

    Obama is lucky again in having his opposition go crazy.

    This is without even considering that now Obama will send the same government ninjas who sabotaged the Deepwater Horizon to sabotage another well.

    Can’t anybody play this game?

  28. 28
    fucen tarmal says:

    imagine if this logic were applied to the war on drugs…you can’t declare a drug addictive, because people have gotten addicted. you have to show that everyone who uses the drug in question, becomes addicted….

  29. 29
    Ed Marshall says:

    @jl:

    None of it matters, the administration will request an appeal and a stay and that process is going to take longer than six months anyway.

  30. 30
    Napoleon says:

    It should be pointed out that in addition to what everyone else has pointed out that they are all drilling on property owned by the federal government. It is not even that the feds are telling them not to drill on their own land that they purchased outright.

  31. 31
    Catsy says:

    How is it possible that the second clause there doesn’t follow from the first?

    Exactly.

    1. A deepwater drilling rig exploded, causing the worst environmental catastrophe in American history.
    2. The industry responsible for stopping the resulting leak admittedly and demonstrably does not know how to reliably do so.
    3. There are thousands of offshore platforms–hundreds of which are deepwater–which do not differ from the one that exploded in any way meaningfully related to the risks they pose.
    4. The agency ostensibly responsible for safety oversight in this industry has a record of corruption and a fraudelent lack of oversight that is a matter of documented fact.

    How does this not lead to the logically inescapable conclusion that all other similar drilling operations pose an unacceptable risk until 1) the individual operations can be reevaluated for regulatory compliance and 2) the industry demonstrates the ability to stop even the one leak we already have?

    Echoing the comment upthread, there has /got/ to be a mechanism for removal of a Federal judge for malfeasance.

  32. 32
    slag says:

    Gah! We are so screwed.

  33. 33
    Napoleon says:

    @Ed Marshall:

    Yeah but the appeal is an interlocutory appeal (ie, before final judgment) which courts rarely hear.

  34. 34
    LikeableInMyOwnWay says:

    @frankdawg:

    Yes. The government has the moral responsibility to regulate this activity. It can order all the planes to land, and it can order all the drilling to stop. For essentially the same kinds of reasons.

    An unmitigated and proximate threat has been exposed, and it needs to be shut down until it is mitigated.

  35. 35
    Redshirt says:

    Hmm. Is this our system of government, at least on the Republican side: Mouth populism while pursuing a relentless goal of corporatism and militarism.

  36. 36
    LikeableInMyOwnWay says:

    Today would be a good day for Obama to emulate his hero, Ronald Reagan. Reagan fired the air traffic controllers.

    Obama should fire McChrystal, and send the US Navy out to put a stop to offshore drilling until it’s safe, and do both things today. And let the hyenas scream. There are times when taking command is what makes or breaks a national leader. Here are two perfect opportunities to take command and tell the adversaries to go pound sand.

    Two birds, two stones, in one day.

  37. 37
    4tehlulz says:

    Is impeachment on the table?

  38. 38
    Bulworth says:

    The blanket moratorium, with no parameters

    Isn’t a term of “six months” kind of a, you know, parameter?

  39. 39
    licensed to kill time says:

    I heard Jeffrey Toobin say last night on Wolf Blitzed that the legal issue was a narrow one:

    TOOBIN: That’s true, and you can tell in the briefs on both sides, the issue is, is the federal government acting arbitrarily and capriciously? Those are the legal buzzwords. Because the only way this action can be overturned is if the federal government acted arbitrarily and capriciously.
    __
    Given the magnitude of what’s happened in the Gulf, given how much damage the Gulf is suffering now, I think it’s a pretty tough argument for the plaintiffs in this case to make that it was arbitrary, capricious, irrational for the federal government to shut down these rigs for a limited period of time. But there is law on the other side. As always with legal issues, they’re not 100 percent clear, so we will see what the judge says.

    I felt kind of hopeful after I heard him say that but I guess my glass was uncharacteristically half full for once. Was Toobin completely wrong on the scope of the legal issue? IANAL.

  40. 40
    RS says:

    I think the ruling was probably at least partially correct, though it probably won’t take much work by the MMS to come up with something with a similar effect.

    A report relied on by the Secretary didn’t actually say what MMS said it did, which is a legitimate administrative law problem. The problem isn’t that MMS can’t restrict drilling, but it can’t say its reasoning is based on a report that says “No drilling deeper than 500 feet” when the report just referred to deep water drilling, and seemed to be aimed at 1000 feet or more.

    I’m predicting that the MMS will appeal the decision, but it will also change its order to be more specific, and more reflective of the report, or come up with a new report that says what it wants it to say. A few shallower water rigs will get the go ahead, and the deepwater platforms will still have to wait.

  41. 41
    Alice Blue says:

    I was under the naive impression that the Gulf is not solely the property of the state of Louisiana and the oil industry. I guess I was wrong.

  42. 42
    trollhattan says:

    @Bulworth:

    Isn’t a term of “six months” kind of a, you know, parameter?

    Must be too squishy. If only they’d said “182.5 days” or 4,380 hours. Although in my experience few use “parameter” correctly and if this guy’s a graduate of the Famous Judges School, he perhaps didn’t receive that learnin’.

    It’s a good thing after the Challenger that we kept throwing shuttles into space without first figuring out what happened and how to fix it. Think of the jobs.

  43. 43
    Midnight Marauder says:

    @RS:

    I think the ruling was probably at least partially correct, though it probably won’t take much work by the MMS to come up with something with a similar effect.

    “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.”

    There is nothing “partially correct” about that statement.

    And the MMS doesn’t exist anymore. It is officially known now as the Bureau of Ocean Energy Management, Regulation and Enforcement, or BOE, for shorthand reference.

  44. 44
    Bulworth says:

    It’s a good thing after the Challenger that we kept throwing shuttles into space without first figuring out what happened and how to fix it. Think of the jobs.

    Heh, indeed.

  45. 45
    KG77 says:

    Am I being a little too sensitive when I note that in the Yahoo News article, the President of these here United States is referred to as simply “Barack Obama” twice, while the judge, even in an article that’s critical of him, is referred to as “Judge Feldman” or “U.S. District Judge Martin Feldman.” It’s me, isn’t it?

  46. 46
    RS says:

    @Midnight Marauder:

    There is nothing “partially correct” about that statement.

    MMS basically said “We pick 500 feet because the report says so.” But the report referenced didn’t actually say so. Agencies are given a wide range of freedom in decision making, but they can’t do that.

    I think its a pretty easy fix though.

  47. 47
    Tony says:

    Shill, baby, shill!

  48. 48
    Michael Scott says:

    Of course, in addition to appealing (on an emergency basis) this nutso decision, the Obama administration could send safety inspectors out to all 33 deepsea drilling rigs affected, and close all those down that fail inspection (likely the same number).

    In (possibly related) news, all automakers and drug manufacturers facing potential recalls today maneuvered to get their lawsuits and TRO requests before Judge Feldman . . .

  49. 49
    unimaginative says:

    In defense of Martin Feldman, he was very funny in Young Frankenstein.

  50. 50
    SlyFox says:

    Damn, I thought Chief Justice Taney was dead.

  51. 51
    Nick says:

    @LikeableInMyOwnWay:

    send the US Navy out to put a stop to offshore drilling until it’s safe

    I’m pretty sure this is blatantly unconstitutional.

  52. 52
    Evinfuilt says:

    Jesus, we as a country are fk’d. On the bright side, at least the corruption was obvious and apparent, and coming from Louisiana, unshocking.

    and also..

    How the hell could he get away with saying we don’t know what happened. We know exactly what happened, every last detail. And the details show that we’ve been damn lucky that this hadn’t happened earlier.

  53. 53

    Yes this is exactly what I said here. He should have recused himself.

    And let’s also remember that the moratorium applies to just 33 rigs.

    Thirty three rigs, people. Hundreds are operating in the Gulf. 33 rigs have to suspend operations and we’re suddenly hearing how it’s the end of the world, an economic disaster, specialized equipment will be forced to leave the area, yada yada. Haley Barbour, Mary Landrieu and Bobby Jindal have been absolutely apoplectic about the moratorium, as if it’s the economic end of their states.

    For 33 rigs.

    I mean Christ on a cracker if nothing shows the hubris of Big Oil and how beholden our government is to Big Oil it’s that.

    33 rigs.

  54. 54
    KG says:

    @Linda Featheringill: Ultimately, it’s up to the attorneys involved in the case. Generally, an order granting or denying a preliminary injunction is immediately appealable. The government attorneys have two choices: appeal (and seek a stay of the order, basically putting the ban back in place) or move forward with the litigation. As an attorney, I think they have to appeal the preliminary injunction, if only because there is no telling how long the litigation will go (plus, there are two advantages from a strategic point of view, trial judges tend to be more cautious when they are appealed and overturned, especially on interlocutory appeals; also, there is the chance that the appeal can serve as a basis to have the case transferred to another judge). On the other hand, there is the question of how many of these rigs are actually operating or being constructed… if the numbers aren’t too high, and aren’t anticipated to be too high, then they might proceed at the trial level.

  55. 55
    eemom says:

    @Hunter Gathers:

    since most federal judges are incredibly well off, they will take any chance they can to stick it to the less fortunate.

    I’m sorry, but that’s just pure idiocy.

  56. 56
    James Hare says:

    @KG:
    They’ll definitely appeal. Otherwise they’re basically saying the President does not have the power to order a blanket moratorium on offshore drilling. Since he has already claimed that power the White House’s attorneys will certainly try to protect it.

    I think you’ll find another federal judge will find very narrow grounds to stay this opinion. Wouldn’t want to make a judgement on whether his conflict of interest warranted a recusal. Best to leave those rules as vague as possible.

  57. 57
    Michael says:

    @Hunter Gathers:

    This will go all the way to the Supreme Court, and will end in a 5-4 decision in favor of Big Oil. Roberts will come to the same conclusion that Feldman did. Bank on it.

    My only question for any new nominee is “are you now or have you ever been a member of the Federalist Society or the Heritage Foundation?”

    As far as I’m concerned, they’re domestic enemies.

  58. 58
    Napoleon says:

    @James Hare:

    They’ll definitely appeal.

    Heck yeah, if for no other reason so that if something happens on one of those rigs they can claim they did everything they could and it is the fault of a Reagan appointee who had a financial interest in the outcome.

  59. 59
    JasonF says:

    The opinion is here:

    http://www.laed.uscourts.gov/G....._doc67.pdf

    Speaking as someone who has argued a few preliminary injunction cases and read a whole lot more opinions involving PIs, this opinion is (if I may use a legal term of art) “piss poor.”

  60. 60
    catclub says:

    @JasonF:
    ‘Piss poor’,

    But probably pretty good for Louisiana courts!

  61. 61
    wengler says:

    I guess the FAA no longer has the ability to ground planes by model type anymore too. A victory for mankind against government’s attempt to regulate things that make us safer.

  62. 62
    Mnemosyne says:

    @licensed to kill time:

    Was Toobin completely wrong on the scope of the legal issue? IANAL.

    Toobin was probably right on the merits, but he didn’t count on a wingnut judge deciding to make up his own version of the law.

  63. 63
    Jack Newhouse says:

    @Dr. Psycho:
    It’s called impeachment; same process as impeaching the president, basically.

  64. 64
    Uloborus says:

    @Nick:
    As are quite a lot of things people seem to want Obama to do.

  65. 65
    The Illogical Planner says:

    @unimaginative: That’s what I was thinking too! Marty Feldman was clearly sharp enough to not fall into this pile o’ crap.

  66. 66
    licensed to kill time says:

    @Mnemosyne:

    I guess my glass half full mood last night was presuming a world where cases actually are decided on the merits, silly me. It sounded so reasonable so no wonder it didn’t work out that way. Back to half empty mode I go.

  67. 67
    Xanthippas says:

    Pretty sure I’m going to catch hell for this, but it would help for you guys to read the judge’s entire order, instead of taking excerpts of his opinion and then reading them completely out of context to equal “drill baby drill.” The Judge is basically saying that the government’s own report is inadequate to justify a six-month moratorium. Since it is his responsibility to be concerned with the violations of the rights of private citizens (including corporations) he can’t simply go all activist judge on us and say “Well, it seems completely obvious to me that drilling is bad, so I’m going to allow the government it’s moratorium even if by law it’s arbitrary and capricious!” Sorry that the judge did his job, and you can’t impeach him because you disagree with his conclusion.

    Honestly guys, this is the same kind of whining the right does every time a judge issues a decision they don’t like.

  68. 68
    Kered (formerly Derek) says:

    @Xanthippas:

    No, wrong.

  69. 69
    JasonF says:

    @Xanthippas: I’ve read the order and I’ll stand by my assessment. He cherry-picks the evidence (even based solely on the evidence that is in the public record it is clear he is cherry-picking) and completely fudges the “irreperable harm” and “public interest” prongs of the test for whether to grant a PI.

  70. 70
    sparky says:

    @JasonF: hmmm. i read it too, but i think the relevant point is the other one–there’s no rational basis for this moratorium, in the sense that there’s nothing in the record to show that because one catastrophe occurred there will necessarily be another one. and that’s purely the Obama DOJ/Interior/EPA decision to present their case that way.

    if there’s no rational basis for the agency’s action (as lawyers define that term), and there is a showing of irrational harm by the plaintiffs then it’s difficult for me to say this decision was wrong, in terms of adlaw. if there really is nothing in the record to show why this particular moratorium was issued–other than the fact of the Deepwater Horizon–than the judge is probably correct on the merits of a PI.

    what you could infer from this is that the Obama DOJ did not argue that this was a pressing national issue on par with, say, not showing war footage. you could also infer that like many other Obama acts, this was a show for public consumption and was issued knowing it would be struck down by the courts. the people in the WH know how to write a rule that survives APA review–if they want to. that they apparently utterly failed to do so is rather telling.

  71. 71
    sven says:

    We hear endlessly from conservatives about the 1% doctrine in foreign policy; the notion that some consequences are so grave that even a 1% chance of them occurring is enough that we ABSOLUTELY MUST take action. (see nuclear armament Iraq, Iran, North Korea)

    The environment, the economy, worker safety, and public health are totally different for some reason.

  72. 72
    sparky says:

    @sven: surprised? a cynic might observe that in those cases, economic activity, no matter how destructive, is always furthered. the American Empire installment plan: pay now AND pay later.

  73. 73
    Mnemosyne says:

    @sparky:

    i read it too, but i think the relevant point is the other one—there’s no rational basis for this moratorium, in the sense that there’s nothing in the record to show that because one catastrophe occurred there will necessarily be another one.

    Is that actually the criterion, though, that they prove that there will necessarily be another catastrophe? Otherwise, it seems that, say, grounding all airline flights after 9/11 was illegal because the government couldn’t prove that another hijacking would occur if the airlines were allowed to fly.

    As someone mentioned above, I’ve seen it occur before that a particular model of airliner is grounded after a crash until the FAA can figure out what happened. Shouldn’t that also be illegal for the government to do since they can’t prove that any other airplanes will necessarily have the same catastrophic failure?

  74. 74
    sven says:

    @Mnemosyne: Well, that was a national emergency.

  75. 75
    ronathan richardson says:

    The case is now absolutely clear that conservatives hate all forms of any regulation in any situation. Seriously, over the last 2 months we’ve had probably $100 billion done in damage to the Gulf, found out that this could be happening lots of places because the industry and MMS overseeing it hasn’t done anything to ensure safety and spill prevention, and when the president makes one of his first big moves to make us hold on for a second while we ensure everything is safe and stable, he gets shot down by the right wing.

    This might be the strongest example yet of how our country could fail. We have to respond and improve when things go massively wrong. And we simply can’t any more. And the fault is with the idiocy of neoconservatism.

  76. 76
    dmbeaster says:

    Can we say forum shopping in getting case before this guy?

  77. 77
    tkogrumpy says:

    @eemom: How about, “bending the parameters of rational discussion” instead.

  78. 78
    liberal says:

    @Xanthippas:

    Sorry that the judge did his job, and you can’t impeach him because you disagree with his conclusion.

    No, he should be impeached for not recusing himself, assuming the claims about conflict of interest circulating in the press stand true.

  79. 79

    […] how the right-wing complains about judges being “activist” whenever they overturn anything they like, such as gay marriage bans or laws that tip the scales […]

  80. 80
    Bernard says:

    once i found out Feldman was a St. Ronnie appointee, i understood. politics of the rights at work as usual. in normal times, judges would recuse themselves, but this are Right wing times where the “Right” judges do the party’s bidding. as has the entire bank of activist judges put in place by the Conservatives over the years. and will continue to do so.

    i often wondered if the idiot American voter ever understand what the Right wing had in store for it. obviously not, and this is one of those cases where those voting for “Reagan, Bush and W” have their payback for appointing the Activist Judges i’ve always heard about. easy to see the price paid by the idiots who voted Republican all those years. Idiot America lol. got the Judicial system they voted for, too. lol

    the idiots still don’t care. they just marvel at how things always seem to “work out” for the Republican party. so they think they are not “idiots” for voting for the “winning” party.

    only they are footing the bills when they come due, not the Republican party. such idiots. bills like wars, oil spills, coal sludge pits, just find some waste dump or poisoned well. business as usual. private profits and taxpayer bailouts, no wage growth or job creation for decades. the idiots don’t make the connection, but they still are paying for it. all.

  81. 81
    Michael Scott says:

    Silly me. I AM a lawyer, and I thought the standard for overturning the agency’s deepsea-drilling moratorium decision was supposed to be whether the agency’s action was “arbitrary and capricious.” I thought the judge was not supposed to substitute his own judgment for that of the agency.

    Under those standards, I just don’t see how Judge Feldman could reach the decision he did. In fact, given the outcome, I’m surprised the judge didn’t write that the moratorium “cast a cloud” on BP’s deepsea-drilling abilities, which does BP “irreparable harm,” and must be reversed for that reason.

  82. 82
    JasonF says:

    @sparky: The legal standard here isn’t rational basis, it’s whether the agency action was arbitrary and capricious. The Supreme Court has explained that

    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.

    Motor Vehicle Manf. Ass’n of the U.S. v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983).

    Because this is a preliminary injunction, the plaintiffs needed to demonstrate that in a full hearing, they had a substantial likelihood of proving that the Department of Interior acted arbitrarily and capriciously.

    Here, Judge Feldmann basically finesses the issue by saying the government’s studies don’t definitively demonstrate that the problems with Deep Water Horizon were endemic to the industry. But there are two problems with that. First, he ignores all the data suggesting systemic problems in the industry (look at the discussion of shear rams at 3000 psi on pages 18-19, for example). Second, and perhaps more importantly, he flips the standard on its head. Instead of holding that the plaintiffs proved that the moratorium is counter to the evidence, or is implausible, he basically shifts the burden to the DoI to prove that the moratorium is mandated by the evidence.

    Simply put, reading this as an attorney, I do not think this is a good opinion.

    That said, Judge Feldmann laid out a blueprint for what the government needs to show to uphold the ban, and the news tonight suggests that the government is going to simply come back with a “new” ban that cites to the evidence that Judge Feldmann said was needed.

  83. 83
    Xanthippas says:

    @Kered (formerly Derek): Well argued sir.

    By the way, is there anybody who thinks that the decision to impose a moratorium was made largely on political grounds? I just don’t think that six months is nearly long enough to undo everything that’s wrong with MMS, or determine if the rigs operating in the Gulf are safe.

  84. 84
    TooManyJens says:

    @The Main Gauche of Mild Reason:

    What, did they think we were just irrationally anti-corporate hippies?

    Do you really have to ask? Yes, of course they thought that. And they told all their followers that. For thirty fucking years.

  85. 85
    eemom says:

    @Michael Scott:

    I thought the standard for overturning the agency’s deepsea-drilling moratorium decision was supposed to be whether the agency’s action was “arbitrary and capricious.” I thought the judge was not supposed to substitute his own judgment for that of the agency.

    I concur. That’s why I feel pretty certain it will be reversed.

    Cool as it may be among the progressive chic to trash the federal judiciary along with every other branch of government, the fact is that they really are different. Most of them (there are always exceptions like this clown) actually do approach their job as legal professionals rather than ideologues or shills.

    Lifetime appointments are good in that way.

    Anyone remember Terri Schiavo? It was the judges who stopped the madness, and most of them were republican appointees.

  86. 86
    Zuzu's Petals says:

    @JasonF:

    But State Farm, as cited by the court at p.12, also specifies that “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” And the court determined (at p. 20) that the agency had not “cogently explain[ed] why it has exercised its discretion in a given manner, ” as required by State Farm.

    And examining whether an administrative agency has made that connection, or that cogent explanation, in its rulemaking, does not turn anything on its head, but seems to be exactly what State Farm requires. In other words, the “burden” lay with the agency when it made its rule.

    I think the judge may have made his strongest point in his finding that there was no indication the secretary considered any alternatives (p. 20), which was the USSC’s rationale for overturning the administrative decision in State Farm ; he tipped us off early when he called it a rationale that “resonates” in this case (p. 12).

    It will be interesting to see what an appellate court says.

  87. 87
    Zuzu's Petals says:

    @JasonF:

    First, he ignores all the data suggesting systemic problems in the industry (look at the discussion of shear rams at 3000 psi on pages 18-19, for example).

    I think the discussion of shear rams at 3000 psi (approx. depth 1335 ft) is not the best example of ignoring data suggesting systemic problems in the industry. In fact, he suggests that it is an example of a problem that is so specific that it cannot reasonably justify such a broad moratorium:

    “How these studies support a finding that shear equipment does not work consistently at 500 feet is incomprehensible.”

  88. 88

    […] commenters at Think Progress, Crooks and Liars, Raw Story, Gawker, The Impolitic, Daily Kos, and Balloon Juice are going nuts with personal attacks, and here’s a cute bit of idiocy from John Cole at […]

  89. 89

    […] commenters at Think Progress, Crooks and Liars, Raw Story, Gawker, The Impolitic, Daily Kos, and Balloon Juice are going nuts with personal attacks, and here’s a cute bit of idiocy from John Cole at […]

  90. 90
    Zuzu's Petals says:

    @Zuzu’s Petals:

    Correction, 3000 psi should equal approx. 7000 ft depth, not 1335.

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