Arbitrary and Capricious

Judges are not supposed to prevent the government from doing its job, especially when public safety and protection of the environment are at stake.

Federal District Court Judge Martin Feldman acknowledged that concept when he cited the well established legal principle that "the court is prohibited from substituting its judgment for that of a government agency." Yet this very same Judge Feldman decided in favor of several oil-related businesses that brought a suit to block the federal government's six month moratorium on Gulf of Mexico deep water drilling in the wake of the calamitous BP oil spill. The Judge found that the Obama Administration's moratorium was "capricious and arbitrary" because of the economic hardship it would inflict. Under the law, a finding of "capricious and arbitrary" gave him the authority to enjoin government action. Clearly, the New Orleans-based Reagan judicial appointee had no affinity for the Precautionary Principle, the "better safe than sorry" approach that is the driving philosophical force behind environmental protection policy.

It was the Precautionary Principle that motivated President Obama to impose a six month moratorium on the 33 exploratory deep water rigs in the Gulf while experts searched for the cause of the disastrous BP spill and ways to prevent a similar occurrence. The thought of a repeat performance is a nightmare, considering that the pollution impacts of the BP spill could conceivably plague the Gulf region's citizenry and environment for generations to come.

Obama Administration officials believe their policy is justified by the environmental risk of another blowout far outweighing the loss of oil revenue from a temporary shutdown of the 33 deep water rigs. [According to Rep. Ed Markey, D-Mass., 97 percent of the manned rigs in the Gulf are up and running.]

Moreover, the warning by Judge Feldman and moratorium foes that the oil companies are likely to pick up and move their rigs to petroleum-rich waters elsewhere in the world if temporarily barred from operating in the Gulf should be taken with a grain of salt. If industry has so many attractive options abroad, why is it fighting tooth and nail to stay put?

"Better safe than sorry" is not sufficient reason for a moratorium as far as Judge Feldman is concerned. He ruled that the government provided insufficient evidence on the consequences of another blowout. There was insufficient evidence all right, insufficient evidence to cancel the moratorium and award the 33 deep water rigs a clean bill of health.

I'll concede that Obama's Interior Department should have made the moratorium more flexible. The Administration could have said that if solutions were found sooner than six months, the moratorium would be rescinded. Conversely, the moratorium would be extended if no answers were forthcoming after the six month period.

In his written opinion, Judge Feldman declared that the moratorium would cause "irreparable (economic) harm." How about the "irreparable environmental harm" a second blowout would cause the region, especially when at this juncture we don't know how to shut off the spigots?

The judge goes on to accuse the federal government of being "overbearing and heavy handed" in assuming that one bad deep water rig makes all its counterparts suspect. But if one doesn't know the cause of the BP malfunction or how properly to cap it, placing a temporary hold on similar rigs until the mystery is resolved would seem more aptly termed "prudent" (and within the bounds of the executive branch's obligation under the law).

In declaring he was protecting the "public interest," Judge Feldman again advanced the rationale that there was insufficient evidence to justify the moratorium. He got it backwards. The "public interest" dictates that the benefit of the doubt go to the prospective victims of a spill, not to the potential polluters on whose shoulders should rest the burden of proof that they are in regulatory compliance.

Judge Feldman would have been better off recusing himself from the lawsuit, given his disclosure of stock ownership in several offshore drilling-related companies. If that doesn't create the appearance of oil industry bias, his judicial ruling certainly does.

Edward Flattau is an environmental columnist residing in Washington, D.C. and the author of the forthcoming book, Green Morality, due for release at the end of the summer.