Obama administration didn't violate order striking down temporary drilling moratorium, court rules

11 28, 2012 by The Times-Picayune

The Obama administration didn't violate an order by a judge who struck down its temporary moratorium on deep water drilling after BP's 2010 oil spill in the Gulf of Mexico, a federal appeals court has ruled. A three-judge panel from the 5th U.S. Circuit Court of Appeals on Tuesday reversed U.S. District Judge Martin Feldman's civil contempt finding against the Interior Department. The divided panel's majority opinion concludes Interior officials took steps to avoid the effect of an injunction issued by Feldman but didn't violate it.

In his February 2011 ruling, Feldman chided the department for its "dismissive conduct" after he overturned its decision to halt new permits for deep water projects and suspend drilling on 33 exploratory wells after the Deepwater Horizon rig explosion killed 11 workers and triggered the massive spill.

After Feldman overturned the government's moratorium in June 2010, the agency issued a second nearly identical suspension.

The 5th Circuit panel, however, said Feldman's injunction didn't explicitly prohibit a new moratorium, let alone one that was nearly identical to the first.

"A more broadly worded injunction that explicitly prohibited the end-run taken by Interior would have set up issues more clearly supportive of contempt," Judge Leslie Southwick wrote in the majority opinion.

The 5th Circuit threw out Feldman's award of roughly $530,000 in attorneys' fees and costs to offshore service companies that challenged the moratorium, including Hornbeck Offshore Services LLC.

Southwick said the Interior Department was carrying out a policy decision by President Barack Obama.

"The national importance of this case weakens, not strengthens, the propriety of the court's contempt finding," he wrote.

In a dissenting opinion, Judge Jennifer Walker Elrod said she believes Feldman didn't abuse his discretion in holding the Interior Department in contempt.

Walker said the majority opinion's remark that the "controversial policy decisions" at issue were "made at the highest levels of government" doesn't insulate those decisions from judicial review.

"The court's power to enforce its orders must remain intact, even in the midst of the most critical emergencies of the state," she wrote. "Simply put, the Judiciary may be the least dangerous branch, but it is not entirely toothless."