TUSooner
7/9/2010, 11:36 AM
I was lucky enough to get a seat in the courtroom yesterday when the Government argued for a stay of the injunction that is currently barring enforcement of the drilling ban. (Welcome to the land of double and triple negatives!)
As you may recall, in the district court the plaintiffs had famously won an injunction against enforcement of the drilling ban. The Govt. has appealed, and the actual appeal of the injunction will be expedited and probably argued at the end of August. Meanwhile, the Govt wanted the appellate court to stay the injunction (and thus revive the drilling ban) until the appeal was heard.
A friend of mine from our kids' sporting days is lead counsel for the plaintiffs (those opposing the drilling ban). He argued very well.
In an unusually quick decision, the panel denied the Govt's motion less than 2 hours after argument. The plaintiffs' lawyers had retired to a local hotel bar for post-argument drinks and un-winding. My friend was delighted, to say the least, when I saw him later in the afternoon.
The decision was 2-1. The judges voting against the Govt (Smith and Davis)seemed to focus on the narrow requirements for a stay pending appeal and on the Govt's burden of showing a significant likelihood of harm if the stay were not granted. Judge Smith also stung the Govt's lawyer on 2 points: He led the Govt to admit tepidly that the economic harm to citizens was not really the Govt's problem in deciding whether to suspend drilling, and he was openly skeptical when the Govt's lawyer said that the threatened "second moratorium" had nothing to do with what the court would decide about the stay.
The dissenting judge, Dennis, seemed to care more about the Govt's likely success on appeal, which is another factor relevant to a stay. He did not seem especially fond of the Govt's expansive drill ban as a matter of good policy, but he put a lot of weight on the discretion afforded by the law to the Secretary of the Interior, and he harped a bit on the Govt's ownership and sovereignty over the outer continental shelf. Judge Davis also tested the plaintiff's on the extent of the Govt's authority. The plaintiffs conceded the Govt's general authority but were steadfast in arguing that the Govt. had not followed it own rules before imposing an unreasonable blanket drilling ban. At the end of the argument it seemed likely that there would be a 2-1 win for the plaintiffs. (There were many more Qs and As that I could discuss if I had more time.)
Afterward, Gov Jindal, who attended the argument, held a press conference in the shady square in front of our office building and made what I thought were very well reasoned arguments against the blanket ban. He emphasized that the State was in favor of essentially any other steps the US Govt wanted to take, except the thoughtless overbroad moratorium that is putting thousands out of work. He criticized the offers of temporary unemployment aid and BP aid saying that most people just wanted to get back to their jobs and not have to go to BP and the US for handouts. He offered to work with the US Govt to come to a more effective and less harmful solution. As I said, I thought his remarks were excellent. (I get the idea that the Secretary of the Interior is only interested in showing who's boss.)
As for the merits of the appeal to be heard later (by another panel, I think), I'm not too optimistic for the plaintiffs. The law doesn't generally prevent the Govt from making bad policy - as is readily apparent to anyone who's read a newspaper in the last 50 years. Rather, the relevant law in this case - as I understand it - is that the Govt, specifically the Secy of the Interior, is barred only from acting in an arbitrary and capricious manner. That gives the Govt lots of deference to make policy decisions. And while Judge Feldman's injunction opinion looks pretty sound to me, you just never know how far the Govt's deference will be stretched by a panel of appellate judges.
As you may recall, in the district court the plaintiffs had famously won an injunction against enforcement of the drilling ban. The Govt. has appealed, and the actual appeal of the injunction will be expedited and probably argued at the end of August. Meanwhile, the Govt wanted the appellate court to stay the injunction (and thus revive the drilling ban) until the appeal was heard.
A friend of mine from our kids' sporting days is lead counsel for the plaintiffs (those opposing the drilling ban). He argued very well.
In an unusually quick decision, the panel denied the Govt's motion less than 2 hours after argument. The plaintiffs' lawyers had retired to a local hotel bar for post-argument drinks and un-winding. My friend was delighted, to say the least, when I saw him later in the afternoon.
The decision was 2-1. The judges voting against the Govt (Smith and Davis)seemed to focus on the narrow requirements for a stay pending appeal and on the Govt's burden of showing a significant likelihood of harm if the stay were not granted. Judge Smith also stung the Govt's lawyer on 2 points: He led the Govt to admit tepidly that the economic harm to citizens was not really the Govt's problem in deciding whether to suspend drilling, and he was openly skeptical when the Govt's lawyer said that the threatened "second moratorium" had nothing to do with what the court would decide about the stay.
The dissenting judge, Dennis, seemed to care more about the Govt's likely success on appeal, which is another factor relevant to a stay. He did not seem especially fond of the Govt's expansive drill ban as a matter of good policy, but he put a lot of weight on the discretion afforded by the law to the Secretary of the Interior, and he harped a bit on the Govt's ownership and sovereignty over the outer continental shelf. Judge Davis also tested the plaintiff's on the extent of the Govt's authority. The plaintiffs conceded the Govt's general authority but were steadfast in arguing that the Govt. had not followed it own rules before imposing an unreasonable blanket drilling ban. At the end of the argument it seemed likely that there would be a 2-1 win for the plaintiffs. (There were many more Qs and As that I could discuss if I had more time.)
Afterward, Gov Jindal, who attended the argument, held a press conference in the shady square in front of our office building and made what I thought were very well reasoned arguments against the blanket ban. He emphasized that the State was in favor of essentially any other steps the US Govt wanted to take, except the thoughtless overbroad moratorium that is putting thousands out of work. He criticized the offers of temporary unemployment aid and BP aid saying that most people just wanted to get back to their jobs and not have to go to BP and the US for handouts. He offered to work with the US Govt to come to a more effective and less harmful solution. As I said, I thought his remarks were excellent. (I get the idea that the Secretary of the Interior is only interested in showing who's boss.)
As for the merits of the appeal to be heard later (by another panel, I think), I'm not too optimistic for the plaintiffs. The law doesn't generally prevent the Govt from making bad policy - as is readily apparent to anyone who's read a newspaper in the last 50 years. Rather, the relevant law in this case - as I understand it - is that the Govt, specifically the Secy of the Interior, is barred only from acting in an arbitrary and capricious manner. That gives the Govt lots of deference to make policy decisions. And while Judge Feldman's injunction opinion looks pretty sound to me, you just never know how far the Govt's deference will be stretched by a panel of appellate judges.