Cross-posted from Legal Planet.
As he had promised, Interior Secretary Ken Salazar on Monday issued a new decision memorandum suspending certain deepwater drilling operations.Monday’s decision replaces the moratorium that the federal District Court in New Orleans enjoined on June 22, and which the Fifth Circuit declined to reinstate last week.
As I made clear in my post on the Fifth Circuit decision, I think both the District Court and the Fifth Circuit were wrong on the first moratorium. Even if they were right, however, this new one should pass muster.
The new decision calls a halt to exploratory drilling by rigs using subsurface blow-out preventers (the kind that failed on the Deepwater Horizon) or surface blow-out preventers on floating rigs, and to issuance of new permits for that kind of drilling. Like the first moratorium, it does not restrict production from existing wells. It will last until November 30, 2010, but could be lifted earlier if circumstances warrant.
The new decision squarely addresses the key concern of the District Court, which was that the first moratorium did not clearly explain the boundary line it drew (suspending exploratory drilling in more than 500 feet of water) or its conclusion that deepwater drilling threatened serious damage. The first time around, Secretary Salazar issued only a one-page memorandum. This time, he explains his reasoning in a detailed 30-page document, which in turn refers to a number of reports and other analyses since the Deepwater Horizon explosion. Secretary Salazar explains the special risks of subsurface floating rig blow-out preventers. He goes on to explain that the moratorium is necessary: (1) to allow more time for industry and government to understand and address what went wrong at the Macondo well; (2) to allow industry to figure out how to contain or control a deepwater blowout; and (3) because response resources are already stretched to the limit by the BP spill. (I might have added that BP has proved it cannot live up to the terms of its response plan, and there is no reason to think that other offshore operators could do any better.)
This decision should survive judicial review. But the last one should have too, and it didn’t. What happens in the short term, should oil service companies again challenge the moratorium, depends just how results-oriented the courts are, and just how concerned they are with the (legally irrelevant) economic harm that might result from a pause. But because it seems likely that this moratorium would eventually hold up on the merits, and because it would be politically (and for that matter economically) silly to begin new drilling in the face of substantial uncertainty about what caused the Deepwater Horizon blowout, I would be very surprised if any lessees were to start new exploratory drilling even if the courts do temporarily enjoin this decision.
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Holly Doremus | July 13, 2010
Cross-posted from Legal Planet. As he had promised, Interior Secretary Ken Salazar on Monday issued a new decision memorandum suspending certain deepwater drilling operations.Monday’s decision replaces the moratorium that the federal District Court in New Orleans enjoined on June 22, and which the Fifth Circuit declined to reinstate last week. As I made clear in […]
Rena Steinzor | July 13, 2010
This post was written by CPR President Rena Steinzor and Michael Patoka, a student at the University of Maryland School of Law and research assistant to Steinzor. Last October, the EPA proposed to regulate, for the first time, the toxic coal ash that sits in massive landfills and ponds next to coal-fired power plants across […]
Holly Doremus | July 9, 2010
Cross-posted from Legal Planet. A three-judge panel of the Fifth Circuit heard arguments Thursday on the Obama administration’s request that it stay the District Court’s injunction of the 6-month deepwater oil development moratorium, and by a 2-1 vote quickly rejected the request. The moratorium halted any new drilling, and the granting of any new permits […]
Victor Flatt | July 8, 2010
On Tuesday, the EPA released its long awaited rule to replace the Bush era Clean Air Interstate Rule, invalidated by the DC Circuit in 2008’s North Carolina v. EPA. There are many things that could have been different or improved, but given the EPA’s need to get a rule out quickly to replace the existing rule, […]
Matthew Freeman | July 8, 2010
Over on Slate this weekend, William Saletan posted an Elena Kagan piece in which he describes a 1996 incident in which the future presumptive Supreme Court Justice, then working at the White House, commented on a draft statement on “partial birth abortion” by the American College of Obstetricians and Gynecologists (ACOG). Congress was then on […]
Ben Somberg | July 7, 2010
Sorry to link to the Daily Show again, but I swear it’s relevant. On last night’s show, Lewis Black covered recent food safety and consumer product safety news. “But knowingly selling us broken cars, poisoned medicines — if I didn’t know any better, I’d think these companies were just in for the money!”
Rena Steinzor | July 6, 2010
Desperate to move a funding bill for Chesapeake Bay restoration out of the Senate Environment and Public Works Committee, progressive Senator Benjamin Cardin (D-MD) went into the scrum with one of the body’s most conservative members, James Inhofe (R-OK). After a struggle of uncertain intensity and duration, the two emerged, with Inhofe, who openly ridicules the […]
Holly Doremus | July 6, 2010
Cross-posted from Legal Planet. Previously I wrote about the shortcomings of ESA consultation on the Deepwater Horizon and other offshore oil rigs. Today I take up the implications of the spill itself under the ESA. At least one ESA lawsuit has already been filed, and at least partially resolved. The Animal Welfare Institute, Center for […]
Matthew Freeman | July 5, 2010
In an op-ed in this morning’s Raleigh News & Observer, CPR Member Scholar Victor Flatt describes why it is that BP was allowed to drill its Macondo 252 deepwater well — the one that is now spewing oil into the Gulf — without conducting a serious analysis of the risks of a blowout, and providing a detailed and […]