Legal Commentary

Judge Holds Government in Contempt Over Drilling Moratorium

By Jonathan H. Adler

In an order issued yesterday, federal district court judge Martin Feldman held the Department of Interior in contempt for seeking to reimpose a blanket moratorium on deepwater drilling in the Gulf of Mexico in defiance of the court?s decision to enjoin the initial moratorium.  From the order:

The plaintiffs civil contempt claim focuses on the government?s imposition of a second blanket moratorium hurriedly on the heels of the first; plaintiffs argue that moratorium amounts to a flagrant and continuous disregard of the Court?s Order.  But a finding of contempt of the preliminary injunction Order for that reason alone falls short.  The plaintiffs read this Court?s preliminary injunction Order too broadly; that Order emerged from the Court?s finding that the plaintiffs were substantially likely to prove that the process leading to the first moratorium was arbitrary and capricious as a matter of law.  As an answer to the plaintiffs? quarrel with the second moratorium, the government maintains that it merely met the Court?s concerns and resolved each of the procedural deficiencies the Court found in the first. Perhaps. Under these facts alone, then, the Court could not, at least not clearly and convincingly, find the government in contemptof the preliminary injunction Order . . .

There is, however, more to the story.  The Plaintiffs also stress that the government did not simply reimpose a blanked moratorium; rather, each step the government took following the Court?s imposition of a preliminary injunction showcases its defiance: the government failed to seek a remand; it continually reaffirmed its intention and resolve to restore the moratorium; it even notified operators that though a preliminary injunction had issued, they could quickly expect a new moratorium.  Such dismissive conduct, viewed in tandem with the reimposition of a second blanket and substantively identical moratorium and in light of the national importance of this case, provide this Court with clear and convincing evidence  of the government?s contempt of this Court?s preliminary injunction Order.  To the extent the plaintiffs? motion asserts civil contempt based on the government?s determined disregard of this Court?s Order of a preliminary injunction, it is GRANTED.

This may seem harsh, and holding the government in contempt is somewhat unusual. I suspect Judge Feldman?s conclusion was influenced, at least in part, by his perception that the federal government was less-than forthright with the court.  In a footnote referencing the controversy over White House edits to a federal report that created the misleading impression that the Interior Department?s decision was supported by outside experts, Judge Feldman suggests government attorneys made representations to the court at odds with subsequent accounts.  If so, the Interior Department brought this upon itself.

As a consequence of Judge Feldman?s ruling, the companies that challenged the original moratorium will obtain legal fees from the federal government.  More coverage of the decision can be found here and here.

Meanwhile, in another proceeding, another federal district court judge in Louisiana held that oil spill compensation fund administrator Kenneth Feinberg is not wholly independent from BP and should not represent himself as such to claimants.  That order is here.  It?s not immediately clear whether this could impact already-settled compensation claims.

Full post as published by The Volokh Conspiracy on February 03, 2011 (boomark / email).