

Judge Blocks Deep Water Drilling Moratorium - jbooth
http://www.nytimes.com/2010/06/23/us/23drill.html

======
hga
Here's what a law professor considers to be the key finding in the decision
([http://legalinsurrection.blogspot.com/2010/06/gulf-oil-
spill...](http://legalinsurrection.blogspot.com/2010/06/gulf-oil-spill-
moratorium-decision.html)):

" _Much to the government’s discomfort and this Court’s uneasiness, the
Summary also states that “the recommendations contained in this report have
been peer-reviewed by seven experts identified by the National Academy of
Engineering.” As the plaintiffs, and the experts themselves, pointedly
observe, this statement was misleading. The experts charge it was a
“misrepresentation.” It was factually incorrect. Although the experts agreed
with the safety recommendations contained in the body of the main Report, five
of the National Academy experts and three of the other experts have publicly
stated that they “do not agree with the six month blanket moratorium” on
floating drilling. They envisioned a more limited kind of moratorium, but a
blanket moratorium was added after their final review, they complain, and was
never agreed to by them._ "

Judges don't tend to view blatant lies with favor.

------
jbooth
From the judge:

 _He wrote that “the blanket moratorium, with no parameters, seems to assume
that because one rig failed and although no one yet fully knows why, all
companies and rigs drilling new wells over 500 feet also universally present
an imminent danger.”_

Personally, if I have a component fail violently and no explanation why, then
I tend to err on the side of caution until I have some answers.. but that's
just me. I'm sure this judge knows what he's doing.

~~~
hga
For an evenhanded report on the decision including a link to the actual
decision, try The Volokh Conspiracy:
<http://news.ycombinator.com/item?id=1452889>

Here's the words that are wrapped about the about incendiary NYT quote:

" _The Deepwater Horizon oil spill is an unprecedented, sad, ugly and inhuman
disaster. 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. While the implementation of regulations and a new culture
of safety are supportable by the Report and the documents presented, the
blanket moratorium, with no parameters, seems to assume that because one rig
failed and although no one yet fully knows why, all companies and rigs
drilling new wells over 500 feet also universally present an imminent danger.

On the record now before the Court, the defendants have failed to cogently
reflect the decision to issue a blanket, generic, indeed punitive, moratorium
with the facts developed during the thirty-day review. The plaintiffs have
established a likelihood of successfully showing that the Administration acted
arbitrarily and capriciously in issuing the moratorium._

As a matter of law, I suspect the judge does know what he's doing. And we are,
or at least aspire to be, a nation that lives under the rule of law, not men.

Also, as he notes: "no one yet fully knows why", which is very different from
"no explanation why". We know _quite_ a bit about how this happened, probably
enough to prevent it from happening again with the current state of the art.

BP wasn't following industry best practices, wasn't listening to its
subcontractor, saw a bunch of large red flags as previously noted in in
submissions to HN, etc. etc. Prior to the inevitable new regulations, we can
have a reasonable expectation that other drillers will pay sufficient
attention to all this and avoid another nasty blowout anytime soon.

After all, the last one was 30 years ago (Ixtoc I); the real danger will be
when people become complacent again.

~~~
jbooth
The extra words don't change what he's saying at all, or make it particularly
less incendiary.

Yeah, it was a tragedy, I love puppies, blah blah, but here's what I'm saying:
"Even though this blew up and nobody knows why, and even though this was
allegedly safe under the previous inspection regime, I see no reason to stop
drilling for 6 months while we figure what went wrong."

The preamble doesn't change anything.

~~~
hga
Well, read the rest and see what it says.

NOTE: jbooth probably wrote his "nobody knows why" while I was adding to my
initial draft of my posting that we actually do know a lot of why it happened.

~~~
jbooth
I skimmed the rest of the excerpt on Volokh.

It seems like this judge is playing politics. He's not an engineer. He's not
supposed to be ruling on policy, just on legality. And yeah, the report the
administration sent to him sounds sloppy -- that's _more_ of a reason to be
cautious for a few months while they get their house in order.

"You must prove imminent danger beyond a reasonable doubt before I let you
take cautionary measures" is a sort of ridiculous position to take.

EDIT: Regarding your addendum to your previous comment: _"we can have a
reasonable expectation that other drillers will pay sufficient attention to
all this and avoid another nasty blowout anytime soon."_ \-- I see absolutely
_no_ reason to assume this to be the case. Do you see them voluntarily
stopping drilling and auditing all of their processes to make sure they're ok?
Probably not, right? So stuff's gonna continue the same as before.

~~~
hga
" _He's not supposed to be ruling on policy, just on legality._ "

Not exactly. As a court of first instance
(<http://en.wikipedia.org/wiki/Trial_courts>) " _[...] evidence and testimony
are admitted under the rules of evidence established by applicable procedural
law and determinations called_ findings of fact _are made based on the
evidence. The court, presided over by one or more judges, makes_ findings of
law _based upon the applicable law._ "

Also note that the domain of the ruling is not the engineering per se but how
the executive came to its moratorium decision.

In the case of a preliminary injunction he's supposed to assume that all the
questions of facts go in the favor of the defendant (the government) and to
then decide if as a matter of law the plaintiff would likely win anyway. Hence
the closing paragraph I included above.

