Government 'irreparable harm' argument fails to gain traction before majority Republican-appointed appellate court...

Ernest A. Canning Byon 7/9/2010, 3:19pm PT

Guest blogged by Ernest A. Canning

A three judge panel of the heavily-Republican 5th Circuit Court of Appeal in New Orleans rejected the Department of Interior's request for an emergency stay of Judge Martin Feldman's June 22, 2010 preliminary injunction [PDF], which prevents enforcement of the Department of Interior's six month moratorium on exploratory drilling on only 33 "of the approximately 3,600 structures in the Gulf dedicated to offshore oil exploration and production."

The panel's two Reagan appointees, Judge Jerry E. Smith, joined by Judge W.Eugene Davis, ruled that the government had failed to demonstrate that it would be irreparably harmed if a decision on whether to vacate Judge Feldman's injunction was deferred until after the appeal was heard sometime around the end of August or early September. Judge James L. Dennis, a Clinton appointee, dissented, noting that he did not believe Secretary of Interior Ken Salazar had abused his discretion in ordering a moratorium, which, per the government's motion is limited to those drilling operations that apply "the same technologies employed by Transocean's Deepwater Horizon...only to waters over 500 feet deep..." Since, under the Administrative Procedures Act, a court cannot overturn an agency decision absent an abuse of discretion, Judge Dennis appears to have concluded that Judge Feldman erred in issuing the preliminary injunction.

Judge Dennis did have a question, however, about the six month length of the moratorium.

While yesterday's ruling does not mean that the panel will ultimately rule against the moratorium, the Justice Department and the attorneys representing a number of environmental organizations in the appeal face a daunting climb given Judge Smith's expression of the usual appellate court deference to the findings of the district court judge --- a climb up an oil slicked slope given the ties between the oil industry and the judges who will decide the moratorium's fate...

The Well-Oiled, Republican U.S. Fifth Circuit Court of Appeal

In Citizens United: A Case Which Will Live in Infamy I discussed a more than 40 year, Republican-led "counter-revolution in law," in which a concerted effort has been made to pack our courts with what Professor Cass Sunstein aptly described as "radicals in robes," many of whom are linked to the radical right Robert Bork-founded, billionaire-funded Federalist Society, who, like their founder, have in the words of the late Senator Edward Kennedy (D-MA) fulminated "opposition to the fundamental constitutional principles as they are broadly understood in our society."

By "the end of 2005," as revealed by John Dean in Conservatives without Conscience, the successive Reagan and two Bush Presidencies had succeeded in packing 60% of the federal appellate bench. Of "the 13 circuit courts of appeal, 9 have majorities named by Republican presidents."

The counter-revolution has been especially successful in the 5th Circuit. As revealed by a recent report from the Alliance for Justice [PDF], "twelve of [the 5th Circuit's] sixteen [judges] were appointed by Republican Presidents."

The Alliance for Justice reports:

Judge Smith worked as a civil litigator at the firm Fulbright & Jaworski, where he concentrated on federal energy litigation. He described his practice as “consist[ing] of working with groups of attorneys in various law firms representing major oil companies in lawsuits regarding the interpretation and enforcement of United States Department of Energy price and allocation regulations.”

Judge Smith served on the Texas GOP Executive Committee from 1976-1987 where he reportedly called the League of Women Voters the "plague of women voters."

The Alliance for Justice also reported that, when he was a private litigator, "Judge Davis often represented major offshore drilling and oil companies..."

While on the bench, both Judge Davis and Judge Smith have attended seminars "hosted by the Foundation for Research on Economics & the Environment (FREE) in Big Sky, Montana, for which [they were] reimbursed transportation, lodging, and meal expenses. FREE is a think-tank that promotes free-market environmentalism rather than environmental regulation and is funded largely by corporations like Exxon-Mobil..."

Per their 2008 financial statements, both Judge Davis and Judge Dennis are invested in oil and energy companies.

As we noted in an update to Government's Appellate Motion: Deep Water Drilling Moratorium Judge Abused His Discretion, while this same panel ruled against the oil industry in Comer v. Murphy Oil USA, when the oil industry sought a rehearing en banc (before the full 5th Circuit), there were so many judges who felt compelled to recuse themselves that the court lacked a quorum. The oil companies secured a victory not on the merits but because the majority of the remaining judges felt the absence of a quorum forced them to reinstate the district court's original decision in favor of the oil companies.

So are the words "Equal Justice Under Law" which appear above the entrance to the U.S. Supreme Court applicable in suits between private citizens as against the oil cartel applicable in the 5th Circuit? Can Justice Department attorneys expect a fair hearing before judges who attend oil industry seminars that suggest that so-called "free-market environmentalism" is superior to "environmental regulation?"

The Great American 'Jobs' Scam

According to the AP Report, Louisiana Governor Bobby Jindal, who attended yesterday's oral arguments, complained that the moratorium was costing thousands of jobs. He made no mention of how many jobs and entire industries and ways of life have been lost due to the devastation wrought by the Deep Water Horizon disaster.

Jindal's remarks call to mind Greg LeRoy's The Great American Job Scam: Corporate Tax Dodging and the Myth of Job Creation, which documents how, year-after-year, U.S. corporations use the promise of job creation as a means to extract lucrative subsidies, outright gifts of land and property, sometimes only to run off overseas in search of cheap foreign labor.

When politicians acting as industry shills speak of job loss or creation, more often than not they are hiding an obscene, seven-letter word, P-R-O-F-I-T-S.

UPDATE 07/10/10: Department of Interior to Impose New Moratorium

On Friday, during a visit to the Santa Monica Mountains recreation area, Secretary of Interior Ken Salazar announced that the administration will issue a new moratorium, stating:

The moratorium we issued on May 28, in my view, was right then and is right today. I think it's very legally defensible. I think that the lower court was wrong. We will move forward and in the coming days announce a new moratorium decision. It will be within the next week.

I suspect that, upon the formal imposition of a new moratorium, attorneys for Hornbeck Offshore Services will likely file a motion seeking to extend the preliminary injunction to the new moratorium. However, since this would be a new moratorium based on a new scientific analysis, Hornbeck would be in the same position of having to prove that the new moratorium was arbitrary. It would be of interest in that event to see whether the government, which failed to do so previously, would file a motion to disqualify Judge Feldman because of his conflicts-of-interest.

* * *

Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).



