First, a little Wyatt Earp reference. Virtually everything in life can be tied into a quote from either Tombstone or Wyatt Earp…
Fresh off having been found in contempt of Judge Martin Feldman’s court last month for having ignored an order to lift its offshore drilling moratorium in the Hornbeck Offshore case, Interior Secretary Ken Salazar is now pushing back against another order from the judge – this one in the Ensco Offshore case.
Feldman had issued an order to Interior in Ensco to act on five permit applications that company had pending in front of its Bureau of Ocean Energy Management, Regulation and Enforcement for between four and nine months, with a deadline of March 19 for the agency to either issue or deny the permits. Subsequently Feldman gave BOEMRE a March 31 deadline for action on two other permit applications.
Late Friday, Interior decided to fight the order in court rather than to just act on the permits. Furthermore, it offered threats of outright denial as a result of the deadline. The department also asked for a stay, which Feldman is unlikely to give.
In their filing, Justice Department lawyers say that Judge Martin Feldman’s orders could thwart the “efficient development of oil and gas resources on the Outer Continental Shelf, as well as potentially harm the near-term interests of the operators who submitted the subject applications.”
“The Orders only work to disrupt [the Bureau of Ocean Energy Management, Regulation and Enforcement’s] more efficient, iterative practice of communicating application inadequacies to the applicant so that they can be corrected. BOEMRE instead now may be required to deny the applications outright, which in turn would frustrate Congress’ stated preference that the Outer Continental Shelf be made available for ‘expeditious and orderly development subject to environmental safeguards,’” states the filing with Feldman, who sits on the U.S. District Court for the Eastern District of Louisiana.
The filing explains that Interior is reviewing the applications under beefed-up safety standards imposed after the BP oil spill, and the oil companies with applications covered by Feldman’s order “have not yet satisfied these requirements and, accordingly, they cannot be approved in their current state.”
Also in the filing was this…
“Because BOEMRE’s resources will be focused on the seven applications, the agency will be forced to delay its review of other applications, including applications for shallow water drilling, which may otherwise be ready for final review and approval,” the filing states.
On Wednesday, in testimony on Capitol Hill Salazar had said Feldman’s ruling intrudes on his agency’s discretion. Which is incredibly perceptive of the Secretary; the quality of his agency’s discretion is the reason a federal lawsuit was filed and Feldman was asked to provide judicial relief – also known as intruding on Salazar’s discretion. When you do a lousy job it’s not a surprise when somebody comes along to complain about it.
“The judge in this particular case, in my view, is wrong, and we’ll argue the case, because I don’t believe the court has the jurisdiction to basically tell the administration what my responsibilities are,” was Salazar’s exact quote in front of the Senate Energy and Natural Resources Committee last week.
But Salazar’s deputy David Hayes said “We will comply with the court order and make a decision, up or down, on the (applications) within the time required.”
So between Wednesday and Friday, one of three things happened…
1. Salazar, Hayes and the rest of the gang at Interior decided they couldn’t move on Ensco’s permit applications for whatever reason;
2. Hayes’ statement stands and the request for a stay/appeal on Friday was nothing more than political posturing so it doesn’t look like the Obama administration is being ordered around by some Republican judge in New Orleans; or
3. Hayes was lying in front of that Senate committee so he wouldn’t get taken to the woodshed in front of C-SPAN, and Interior’s defiant stance was the game plan all along.
Either way, it’s significant that Feldman, a federal judge, can’t seem to get the federal government to comply with his decisions. Feldman has already put Salazar in contempt and his ruling on the moratorium was upheld by the Fifth Circuit; to no effect.
The Fifth Circuit isn’t going to overturn Feldman’s order on the Ensco permits, either. No one believes it will. The Fifth Circuit has 12 Republican-appointed judges and four Democrat-appointed judges. And the Republicans are all very cognizant of the importance of the energy industry to the geographical area covered by the circuit. It’s extremely difficult to put a three-judge panel together which would overrule Feldman’s decision that a four-to-nine month delay in approving drilling permits is ridiculous when drilling permits used to be approved in two weeks.
So the administration is filibustering here. They’re going to run up against that March 19 deadline, and when they do they’re going to have to either issue Ensco’s permits or deny them. Politically it’s a loser either way; if Ensco’s applications are approved Salazar will get no credit for it since he was forced by a judge to issue them, and the administration’s left-wing base will be horrified at what they’ll see as a capitulation. But if Salazar denies those applications, the price of crude oil which is well over $100 now and headed north will likely get a substantial boost. The administration’s Republican critics are going to become Salazar’s tormentors and the narrative that Obama is at fault for $4 gasoline (or higher) will become concrete.
It’s stupid policy for Salazar to continue stonewalling permits in the first place. The industry now has not one but two containment systems capable of putting a stop to an oil spill like the one which happened after the Deepwater Horizon accident, so the main justification he put forward for the stalling of deepwater permits is out the window. And the deeper reasons for standing in the way of Gulf drilling – making alternative energy sources like ethanol or wind and solar power more cost-competitive, for example – are simply untenable as a matter of political reality.
Sen. David Vitter (R-LA) was outraged at the suggestion an appeal of Feldman’s ruling was in the offing…
“This is just another excuse by the Interior Department and Secretary Salazar to delay issuing permits and attempt to pass the blame. Gas prices are spiking at incredible rates and our Interior Department is still fighting tooth and nail to block, delay and halt domestic energy production – all while simultaneously trying to pressure Saudi Arabia to increase their own production. Let’s produce more here at home and create more American jobs, not new jobs in Saudi Arabia. Until the administration responds to my repeated requests to start issuing at least 15 new exploratory permits, I’ve decided to block two of Obama’s key nominations for administration positions. The Interior Department’s de facto moratorium has destroyed jobs in Louisiana, contributed to the bankruptcy of at least one major employer and could force all Louisianians to have to pay for $4.00 per gallon gasoline.”
And now, today the administration is now flapping its gums about releasing some of the country’s Strategic Petroleum Reserve at the same time it’s stalling on issuing permits to drill for oil we don’t currently control.
They’ve put themselves in a box through arrogance and a failure to respect the rule of law, and at this point there is almost nothing anyone from the administration can do or say to end it. Our energy policy is broken, the economic effects are likely to choke off any recovery the country might be undergoing and even our national security is going to be threatened if the turmoil in the Middle East gets any worse (which it will). And with all this the Obama administration is busy playing games with a federal judge in New Orleans.
Salazar, with his gigantic black hat, makes for a pretty good Curly Bill Brocius. But Feldman unfortunately lacks the guns to play an effective Wyatt Earp. And that’s a real shame – not just for the oil companies looking to put Louisianans to work offshore, but for the rest of us who will pay a premium at the pump as a result of this administration’s contempt.