Louisiana Record

Friday, February 28, 2020

Gulf drilling can resume in 30 days, judge rules

By Steve Korris | Feb 18, 2011

Deep drilling in the Gulf of Mexico must resume in 30 days, U.S. District Judge Martin Feldman ruled on Feb. 17.

"As the first anniversary of the Deepwater Horizon disaster draws near, any reason that would have justified delays has, under a rule of reason, expired," he wrote.

"Beginning to process permit applications will restore normalcy to the Gulf region and repair the public's faith in the administrative process," he wrote.

Feldman granted a preliminary injunction to Ensco, a drilling company with five permit applications pending at the Department of the Interior.

"The rights involved here are more than economic: the plaintiff's operations in the Gulf of Mexico are threatened with endless disability," he wrote.

"It has already sent a rig to French Guiana; its contracts and skilled labor necessarily will follow," he wrote.

He had denied an injunction in January, asking for more briefs.

The brief that Interior Secretary Ken Salazar submitted disturbed him, and he summarized its view as "autocratic discretion at best."

"The permitting backlog becomes increasingly inexcusable," he wrote.

"Perhaps it is reasonable for permit applicants to wait more than two weeks in a necessarily more closely regulated environment.

"Delays of four months and more in the permitting process, however, are unreasonable, unacceptable, and unjustified by the evidence before the court.

"Strained resources do not amend the government's duty to act on permit applications that pass before it."

Feldman presides over Ensco's action separately from District Judge Carl Barbier of New Orleans, who handles most federal civil suits over the explosion and oil spill last April.

Ensco sued in July, challenging a moratorium that President Obama and Salazar imposed on deep water drilling.

Feldman enjoined the moratorium and Salazar rescinded it.

Salazar issued a similar moratorium, and Feldman found it lacked legal force and effect.

Salazar moved to alter judgment, and Ensco moved for another injunction.

After a hearing on Jan. 12, Feldman wrote that a reasonable time to grant or deny a permit was unclear.

He changed his mind in a month, finding a 30 day deadline for action on applications for exploration permits should extend to applications for drilling permits.

"It is undisputed that before the Deepwater Horizon disaster, permits were processed, on average, in two weeks," he wrote.

"It is also undisputed that these delays have put off indefinitely drilling in the Gulf of Mexico," he wrote.

"Ensco has incurred significantly reduced standby rates on its rigs and has been forced to move some of its rigs to other locations around the world," he wrote.

He wrote that the Administrative Procedures Act vests courts with discretion to decide whether agency delay is reasonable.

"Anything less would paralyze the established judicial review authority fashioned by the APA," he wrote.

"Anything more would be an unacceptable disrespect for the institution of the separation of powers," he wrote.

He found that the outer Continental Shelf Lands Act established a duty on the Department of the Interior to act on applications for drilling permits.

"Not acting at all is not a lawful option," he wrote.

"To discharge the Secretary's oversight responsibility, without any time sensitive obligation to do so, as the government now starkly urges, unmasks the fiction of transparency in government," he wrote.

He wrote that the two laws together require government to act expeditiously to advance development and not to curtail drilling unpredictably or indefinitely.

He wrote that the well has been contained and the revised regulations are no longer new.

"[T]he threat of rigs leaving the Gulf becomes more forceful each day," he wrote.

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