After yesterday vowing to seek an appeal quickly, administration officials now say the Justice Department will refrain from any legal action in response to yesterday's court order that temporarily blocks the Interior Department's moratorium on offshore drilling.
The plan now is for the government to seek a new moratorium, doing so in a way that avoids some of the legal problems identified by the judge who issued yesterday's injunction. For example, the judge chided the Interior Department for claiming that a panel of outside experts had endorsed the moratorium issued in late May, when, in fact, they favored something less sweeping.
Once the Interior Department issues its new moratorium, the government fully expects another legal challenge and very likely another court order blocking it. But on the second round, with a modified moratorium, the Justice Department believes it would be on firmer ground to seek an appeal.
Yesterday, the federal judge who temporarily blocked the government's moratorium on deepwater drilling was harshly critical of the Obama administration in his 22-page legal opinion, both on how the halt to drilling was conceived and on what effect it would have in Gulf states. The flavor of Judge Martin Feldman's order is captured in a single footnote. It quotes from an Interior Department report, which said the BP oil disaster was "commanding the Department of Interior's resources." He adds, "A disturbing admission by this Administration."
The judge notes that the moratorium was first proposed in a report by Interior Secretary Ken Salazar, issued in late May. It called for a six-month moratorium on permits for new wells being drilled using floating rigs. Such a conclusion, the report said, was peer-reviewed by a panel of outside experts. But that statement, Judge Feldman wrote, was a misrepresentation, because the experts "envisioned a more limited kind of moratorium."
The judge chided the administration for glossing over the difference between the dangers of drilling in up to 500 feet of water compared to drilling in depths of 1,000 feet or more.
"The court is unable to divine or fathom a relationship between the findings and the immense scope of the moratorium," he said. "What seems clear is that the federal government has been pressed by what happened on the Deepwater Horizon into an otherwise sweeping confirmation that all Gulf deepwater drilling activities put us all in a universal threat of irreparable harm."
He added, "Are all airplanes a danger because one was? All oil tankers like Exxon Valdez? All trains? All mines? That sort of thinking seems heavy-handed, and rather overbearing," he adds. Judge Feldman concludes by accusing the government of underestimating the effect of even a six-month drilling moratorium on the Gulf economy. "It is only a matter of time before more business and jobs and livelihoods will be lost," made worse, he says, by "the movement of the rigs to other sites around the world.
An Obama administration official had said the government would appeal the judge's order.
"We will take the legal and administrative steps necessary to ensure that deepwater drilling does not continue until more aggressive safety regulations, containment and clean-up plans are in place," the official said yesterday.