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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.




"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.


In reply to your EDIT:

No, I see them as simply following the industry's best practices, which BP conspicuously did not. If necessary, I see the subcontractors, the ones who really know which end is up, pushing back a lot harder, asking overbearing oil company managers if they want to be another BP.

That plus making damned sure your BOP is working (there's some question to whether it failed or simply hit the unshearable coupling section between two pipes) is all that's needed as far as I can tell.




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