Obama Still in the Clear for Gulf Drilling Ban

     (CN) – The “national significance” of the Deepwater Horizon oil spill did not impact the court’s decision to clear the Obama administration of contempt charges over its drilling moratorium, the 5th Circuit said.
     A three-judge panel of the New Orleans-based federal appeals court clarified this point Tuesday by revising its November 2012 opinion.
     Secretary of the Interior Ken Salazar placed the original moratorium on new drilling in the Gulf one week after the April 20, 2010, explosion of the Deepwater Horizon rig, which killed 11 people and set off the worst oil spill in U.S. history.
     A month later, the department issued a “May Directive” imposing a six-month moratorium on drilling operations in the Gulf. The department represented that seven engineering experts had peer-reviewed this policy, but it was later found that five of the seven experts never recommended the moratorium.
     Hornbeck Offshore, which owns a fleet of vessels that support deepwater exploration, sued Salazar, and U.S. District Judge Martin Feldmean ultimately agreed with the company that the moratorium was neither adequately explained nor justified.
     Feldman granted a preliminary injunction against the ban in June 2010, which the divided 5th Circuit reversed in November.
     “If the purpose were to assure the resumption of operations until further court order, it was not clearly set out in the injunction,” Judge Leslie Southwick wrote in November for the majority.
     That opinion also noted the direct involvement of the White House in the reissued moratorium. “Interior was carrying out a policy decision made by the president,” Southwick wrote.
     “The national importance of this case weakens, not strengthens, the propriety of the court’s contempt finding,” he added.
     The panel withdrew and replaced the opinion this week to revisit this point.
     “We note that we see no clear effect favoring either side’s arguments arising from the national significance of the environmental disaster,” Southwick wrote. “The executive and judicial branches are co-equal, and just as the executive branch responds to national emergencies, the judiciary ensures that it does so in compliance with the law.”
     The opinion reiterates that that there were problems in the wording of Feldman’s injunction.
     “The injunction did not state that Interior had to seek permission for a remand before developing additional rules on offshore drilling in the Gulf,” Southwick wrote. “For Interior to have been in contempt, the injunction would have had to include an express or clearly inferrable obligation to petition for a remand,” he added.
     The decision also states that, “taken together, the [Department of Interior’s] comments to industry, to the Senate, and to the public support the District Court’s factual finding (the fact was hardly contested) that Interior was intent on reinstating a moratorium that imposed the same limitations as the May Directive from the moment the court enjoined it.” (Parentheses in original.)
     “Neither harboring that intent nor imposing a new moratorium, though, was a violation of the court order,” Southwick continued.
     Judge Jennifer Elrod remained a dissenter from the majority’s opinion.
     In November, she said the court’s decision “weakens the contempt power of federal district courts by making unreasonably restrictive fact findings of its own to reach a narrow and unworkably technical result.”
     Her new dissent says that the revised majority opinion “still reaches the wrong result,” even though it addresses “some of the most troubling issues raised in my original dissent.”
     “Although the majority opinion now recognizes this circuit’s well-established precedent that a court may look to the totality of the circumstances in determining whether a litigant violated the reasonably understood terms of its order, the majority opinion’s cramped application of that standard disregards the deference owed to the District Court’s contempt findings,” Elrod wrote. “Moreover, the majority opinion’s approach may give incentive for litigants creatively to circumvent district court orders. This is especially troubling where, as here, the contemnor represents a co-equal branch of government. As the least dangerous branch among equals, the Judiciary must be vigilant regarding compliance with its orders, lest it become toothless.”

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