2nd moratorium after oil spill was legal, Justice Department lawyer says

08 09, 2012 by The Times-Picayune

Interior Department Secretary Ken Salazar should not be held in contempt of court for issuing a second moratorium on deep water drilling following BP's Gulf of Mexico oil spill, a federal attorney argued on Wednesday.

A three-judge panel of the 5th U.S. Circuit Court of Appeals heard arguments in a case brought by offshore companies against the Interior Department, which stopped the drilling in May 2010 and then did it again that July despite a court ruling overturning the previous shutdown. The offshore companies are seeking $500,000 in attorney's fees from the Interior Department.

In February 2011, U.S. District Judge Martin Feldman held Salazar and the Interior Department in contempt for what he described as "dismissive conduct" of the ruling. Feldman blasted the agency for issuing what he called a "substantively identical moratorium" to the one he overturned in June 2010.

At the time, Salazar said shutting down deep water drilling was necessary because it was unclear whether burrowing at depths greater than 500 feet could be done safely.

At the appellate hearing, Justice Department attorney Allen M. Brabender fielded a series of questions from the judges.

The central theme of the hearing was whether Salazar's actions were within the bounds of his authority or whether he was set on shutting down drilling regardless of Feldman's ruling.

Brabender argued that Salazar did not show contempt for Feldman's first ruling, which he said was limited to the agency's first moratorium. He argued that the agency's second shutdown was different and that it was backed up by more research and offered more details about why a moratorium was necessary.

Judge Jennifer Elrod said: "It seems that you're saying they could put a new title on a document and re-issue it?"

Brabender said a federal agency could do just that if it thought it necessary and he added that a federal court's power to restrain a federal agency's actions was limited.

Carl D. Rosenblum, a lawyer for 39 offshore companies that sued, called the Interior Department's actions a "pattern of contempt." He argued that "by hook or by crook" Salazar was determined to "shut down the industry."

But Elrod added: "As long as he (Salazar) has a legal way to do it, how is it contempt? That is the problem with this case."

The panel took the matter under advisement and did not say when it might rule.