In response to yesterday’s judicial decision granting a preliminary injunction against the Interior Department’s moratorium on drilling in the Gulf of Mexico at depths greater than 500 feet, Interior Secretary Ken Salazar announced that in the next “few days” he would issue a new order, reimposing the moratorium and providing a more detailed explanation of why the moratorium is necessary. One difficulty for Secretary Salazar will be that the draft report reviewed by outside experts on responses to the spill did not call for a six-month moratorium on drilling at depths greater than 500 feet and focused on the risks of drilling at greater than 1,000 feet. As a consequence, Salazar cannot claim that the drilling ban was called for by experts, nor that the moratorium he imposed follows from his agency’s findings. As Judge Feldman explained in his opinion:
On May 27, 2010 the Secretary issued a Report, which reviews all aspects of drilling operations and recommends immediate and long term reforms to improve drilling safety. In the Executive Summary to the Report, the Secretary recommends “a six-month moratorium on permits for new wells being drilled using floating rigs.” He also recommends “an immediate halt to drilling operations on the 33 permitted wells, not including relief wells currently being drilled by BP, that are currently being drilled using floating rigs in the Gulf of Mexico.” 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. A factor that might cause some apprehension about the probity of the process that led to the Report.
The draft reviewed by the experts, for example, recommended a six-month moratorium on exploratory wells deeper than 1000 feet (not 500 feet) to allow for implementation of suggested safety measures. The Report makes no effort to explicitly justify the moratorium: it does not discuss any irreparable harm that would warrant a suspension of operations, it does not explain how long it would take to implement the recommended safety measures. The Report
does generalize that “[w]hile technological progress has enabled the pursuit of deeper oil and gas deposits in deeper water, the risks associated with operating in water depths in excess of 1,000 feet are significantly more complex than in shallow water.”
Given this background, it will be difficult for the Secretary to use the report as the primary basis for reimposing the moratorium. As Judge Feldman explained in his initial opinion (excerpted here), there does not appear to be a rational relationship between the agency’s findings and the scope of the moratorium. If a broad moratorium is justified (and it may well be) the agency will have to make additional findings or provide a more coherent justification for why the risks and uncertainty about deepwater drilling justify a more expansive, prophylactic moratorium. The purpose of this explanation will be to demonstrate that the decision was motivated by reasoned analysis, and not just political considerations. In this regard, the Secretary’s statement that the moratorium will be reimposed shortly is not particularly helpful, as it suggests the sort of decision-first, analysis-later sort of administrative decision-making that is the hallmark of arbitrary decision-making.
None of this means the Interior Department will be unable to justify the broader moratorium. It will simply have to provide a fuller explanation for its policy choice and why it prefers an expansive moratorium, as opposed to a more limited set of restrictions, such as a halt to drilling focused on the deepest wells or contingent upon the adoption of additional safety measures at affected installations. Reasons could include continued uncertainty about the precise causes of the BP spill and the government’s inability to provide adequate review and oversight of other wells while coping with the current spill. The agency could also seek to appeal the district judge’s ruling, but it is unlikely an appeal would succeed. Appellate review of a district court’s grant of a preliminary injunction is even more deferential than judicial review of agency action.
Meanwhile, Secretary Salazar has renamed the Minerals Management Service as the Bureau of Ocean energy Management, Regulation and Enforcement.
Stephen Lathrop says:
This post reads like a letter from Mars. Is all lawyering like this? Here on Earth we have a giant oil well blowout in the Gulf of Mexico. Oil companies are clearly at a loss to do anything to stop it promptly. That’s the reason for a moratorium on doing other things like the one that caused this catastrophe. It’s a very reasonable reason, not arbitrary at all.
I would be tempted to suggest that quibbling about the details is the resort of people who disagree with the underlying reason, and don’t like the result. But in this case it’s hard to imagine anyone who really does disagree with the underlying reason. My conclusion: the judge is a real red team sort of guy. I don’t even credit the stuff about his conflict of interest. I think he just wants a chance to join up with Republicans who say no.
June 23, 2010, 11:43 amruuffles says:
That’s from the WSJ. What a curious curious juxtaposition of the two sentences.
http://online.wsj.com/article/SB10001424052748704123604575323401349436846.html?mod=loomia&loomia_si=t0:a16:g12:r3:c0.514702:b35118428
June 23, 2010, 11:47 amJPG says:
One more reason why justice is too important to be left into the hands of lawyers and judges…
June 23, 2010, 11:50 amAlyssa says:
Take an Administrative Law class. You’ll feel better.
June 23, 2010, 11:50 amFrank Ch. Eigler says:
“Meanwhile, Secretary Salazar has renamed the Minerals Management Service”
Never mind the wells, now that’s a real relief.
June 23, 2010, 11:56 amTamerlane says:
I agree. Now that we’ve established the principle, we need to immediately promulgate a moratorium on conceiving children because the probability is greater than about one in one hundred thousand or so that a child will grow up to be a murderer or rapist; far greater than the estimated probability that a deep sea oil well will leak serious amounts of oil.
June 23, 2010, 11:56 amStephen Lathrop says:
If I did take it, would I come out reasoning that a Gulf drilling moratorium is arbitrary and capricious? If so, I think I’d head over to the torts department to see if I could get some relief for damages from the administrative law guys.
June 23, 2010, 11:58 amrbj says:
Stephen, read the post & decision:
The moratorium recommendation was a flat out lie by Salazar. A deliberate false statement by the Interior Department. You cannot base an agency rule on a lie. And when you do that, and then in court lie to the judge, you cannot expect to win.
For basing his decision on his flat out lie, Salazar needs to go.
June 23, 2010, 12:03 pmAuf Klarung says:
The whole argument is off to a tangent. So a 6 month “blanket” moratorium on issuing new permits is a & c? Damn straight! I agree it is, and think Feldman’s opinion is actually too weak on that point, but what if Salazar simply refuses to issues individual permits until all recommended safeguards are in place? Is there a right to drill in federal waters?
Meanwhile, can anyone doubt DOI can halt-again on an individualized basis-existing drilling operations until required safeguards are put in place? It’s not called a “permit” for nothing.
Meanwhile-if Company X can meet all new safeguards, hell, give them a permit.
June 23, 2010, 12:04 pmLugo says:
Do we know exactly why this catastrophe happened? Do we know that it can’t happen again, or that if it does, it can be fixed much faster than two months (and counting)? If not, then a continued moratorium seems reasonable. The newspaper articles I’ve read suggest that the oil industry has been pretty cavalier – e.g., they knew back in 2000 that there were significant risks with blowout preventers and simply gambled that they wouldn’t have a blowout. This does not inspire great confidence that we can safely lift the moratorium.
June 23, 2010, 12:05 pmBill N says:
Can (and should) Salazar be held in contempt for submitting a false statement under these circumstances?
June 23, 2010, 12:07 pmMAM says:
I think the Judge may have spent too much time on Bourbon St. It’s, I think, a moratorium on exploratory drilling which accounts for a minuscule number of operating wells in the Gulf after one of the biggest man-made environmental disasters to hit the USA. I think even the 5th Circuit might overrule him. Arbitrary and capricious…I think not.
June 23, 2010, 12:12 pmSteve says:
In this regard, the Secretary’s statement that the moratorium will be reimposed shortly is not particularly helpful, as it suggests the sort of decision-first, analysis-later sort of administrative decision-making that is the hallmark of arbitrary decision-making.
On the other hand, it’s helpful for the government to indicate what it intends to do so that no one wastes resources in reliance upon the lifting of the moratorium.
Also, while I agree that the report was misleading in terms of which recommendations had been peer-reviewed, people are going a little crazy by saying that Salazar should be prosecuted or whatever.
June 23, 2010, 12:17 pmStephen Lathrop says:
What’s the probability that conceiving a child will kill 11 people, lead to species extinctions, throw tens of thousands of people out of work, suspend dividends relied upon by millions of pensioners, degrade health over a geographic region, incur tens of billions in damages, and put the future of an entire industry in question? What’s the probability that anything can be done during a moratorium on conception to fix the risks of conceiving children?
That is what you get when you argue by analogy? Do juries buy that stuff, or does it take special training—maybe you need a lawyer or a judge to see the point of it?
June 23, 2010, 12:19 pmElliot says:
Suppose we stop drilling, but never find out why the BP well blew? What do we do when faced with uncertainty?
June 23, 2010, 12:23 pmAlyssa says:
No. You would find that *this* moratorium of 500 foot or deeper wells affecting all current and future drilling for six months has no rational connection to the agency’s findings. But if you only thought of the issue as “moratorium versus no moratorium” then you probably wouldn’t learn anything.
June 23, 2010, 12:23 pmPersonFromPorlock says:
It’s the renaming of the MMS that’s most telling: when bureaucrats have no idea of what to do, they rename things.
As for the moratorium, Salazar can simply claim ‘classified national security reasons’ and the SCOTUS will defer, as usual.
June 23, 2010, 12:25 pmJonathan H. Adler says:
Mr. Lathrop –
To translate the judge’s opinion, the reason moratorium was arbitrary and capricious is because the government issued a report recommending steps A-through-E for 1,000-plus foot wells, and Salazar used this as a basis for imposing A-through-H for 500-plus foot wells without offering any explanation for why a more prophylactic moratorium was required. The agency drew lines (moratorium length, wells covered, etc.) but did not adequately explain why it chose these lines, a problem made worse because its own report suggested drawing different lines. Interior could have made the case that a broader and more precautionary moratorium was necessary, but this would have conflicted with the his statements implying that the moratorium was among the measures approved by the external expert reviewers.
Salazar could also have imposed a narrower moratorium (focused on the deepest wells), or one that was contingent (such as the moratorium pending inspections and upgrades recommended by Gov. Jindal), as these measures would have been more in line with the government’s report. What he can’t do is have an explanation and a policy decision that don’t relate to one another. If Interior wants to hide behind the expert-reviewed report, its order has to relate to that report.
JHA
June 23, 2010, 12:28 pmHarry Schell says:
At the nub of the judge’s overthrow of the ban and its rationale is whether there are immediate risks of futher blowouts.
Based on the realities of what has happened over the last 40 years, nominally one significant blowout every decade, and none reaching into the top ten of oil spills or even close, this ban is capricious and arbitrary.
That Salazar put it into the “study” by informed (more so than Salazar, Chu, Browner or Junior, by far) without telling the panel and then tried to hide behind them to justify it just makes the move that more dishonest.
This is the preventative priciple used as a political hobby horse, not for the public good. While it is emotionally satisfying to some people, as was the extortion of $20B (and who said that was a good number, how was it derived?) “fund” from BP by threat, it is not law or even lawyering, to this non-lawyer. Junior looks more and more like an HugoChavez-wannabe.
It is theater and conscious, sophisticated choosing to make this mess as bad as it possibly can be to promote a political outcome. It is one thing when this kind of malfeasance is conducted in Chi town and the ill effects are confined therein.
It is a whole different matter when the entire country is pulled through a knothole so Junior can have a “legacy”.
Now all he has to do is declare amnesty for all illegal aliens via executive order. All the liberal bloviations about Bush’s “imperial presidency” are sounding like the “culture of corruption” meme’s.
The actual message was “let us show you how the pros do this”.
June 23, 2010, 12:29 pmLongCat says:
You admit that the judge must consider the likelihood of an adverse outcome in a ruling, so you’re now just upset that you don’t like the result of the discretion you admit a judge must exercise.
June 23, 2010, 12:36 pmArkady says:
Say what?
Based on the realities of what has happened over the last 40 years, nominally one significant blowout every decade, and none reaching into the top ten of oil spills or even close, this ban is capricious and arbitrary.
Regardless of where you come down on the moratorium, isn’t that the silliest sentence yet written on this issue?
June 23, 2010, 12:44 pmJasonF says:
The Deepwater Horizon — even at the low-end estimates — is in the Top Ten of oil spills of all time and may be the third largest oil spill of all time if the high-end estimates are accurate.
June 23, 2010, 12:48 pmLibertarian1 says:
IANAL One of the many reasons I so enjoy reading this site is the emphasis on the Rule of Law. Frequently I sense that in one of Eugene’s posts he will approve the legal rationale behind a decision because it is based on the law even though he would personally prefer a different outcome.
Unfortunately, in this and the previous post on the subject I sense a desire for the judge to decide based on what the writer wishes to accomplish politically. What should be the limits of Presidential power? I sense that many of the writers who opposed the court decision felt the exact opposite when one of Bush’s decisions was overturned by the courts in terrorism cases and privacy.
In all these cases my question is, what is the law and did the judge follow the law? All the parties involved are intelligent enough to develop a reasonable rationale for their actions – oil spill or terrorism, but what does the law say they may do?
June 23, 2010, 12:56 pmDavid M. Nieporent says:
You would come out learning that the issue is not whether, hypothetically, “a” Gulf drilling moratorium is arbitrary and capricious in the abstract, but whether the specific moratorium ordered by the administration was done arbitrarily and capriciously.
You would also come out learning that to answer this question, you need to look at evidence, rather than just handwaving.
The fact that one oil well blew and people are having trouble stopping it does not mean that it is reasonable to ban different oil wells with different characteristics — any more than an airplane crash justifies banning all forms of motorized transport.
June 23, 2010, 1:06 pmDeep Thinker says:
I support this moratorium just as I supported the moratorium on Muslim’s flying after 9/11. After all, if there is a potential for danger, the government should do everything possible to prevent a similar catastrophe. The law is irrelevant when we are confronted with existential dangers.
June 23, 2010, 1:28 pm9/11The Deepwater Horizon changed everything.LarryA says:
Tell us what you really think. ;-)
The well that blew was under 5,000 feet of water. Experts recommended a moratorium for wells under 1,000 feet of water. (“other things like the one that caused this catastrophe”) Salazar bans drilling in 500 feet.
Sort of like your doctor says you have frostbite and recommends the amputation of your foot. Then the hospital administrator decides your leg should be removed because the doctor said it was necessary.
Breaking: The administration won’t appeal the court decision.
The plan now is for the government to seek a new moratorium, doing so in a way that avoids some of the legal problems identified by the judge who issued yesterday’s injunction. For example, the judge chided the Interior Department for claiming that a panel of outside experts had endorsed the moratorium issued in late May, when, in fact, they favored something less sweeping.
Once the Interior Department issues its new moratorium, the government fully expects another legal challenge and very likely another court order blocking it. But on the second round, with a modified moratorium, the Justice Department believes it would be on firmer ground to seek an appeal.
Sounds like Salazar’s learning curve is no shorter than BP’s.
June 23, 2010, 1:33 pmJ Mann says:
If I understand correctly:
1) DOI retained a group of subject matter experts (mostly university profs with expertise in oil drilling) to assess the damages.
2) The group signed of on a report which included a recommendation that DOI (i) halt drilling at existing wells until the wells could pass a DOI inspection and (ii) stop issuing new permits for drilling at depths over 1000 feet for 6 months.
3) After the experts signed off, DOI changed the recommendation to (i) halting drilling at existing wells for 6 months and (ii) no issuing new permits for drilling at over 500 feet. DOI represented that the recommendation was peer reviewed and based on expert consensus when it was not.
4) At least a majority of DOI’s experts have said that #3 is not supported by their findings and may actually reduce safety.
Agencies get a lot of discretion, but that’s a rough record to defend.
Wouldn’t Salazar be best served just by imposing the original recommendation (the one that the scientists support)? He’s got a clear record for it, and it would show action.
June 23, 2010, 1:33 pmSonicfrog says:
Rant // On
Here is the problem with the Obama administration’s stance on this. They brought in fifteen experts, scientists and engineers, to help shape a policy recommendation concerning drilling in the gulf. The administration supposedly based the decision to impose the moratorium on the findings and recommendations of this panel. Yet we later learn that the panel did NOT recommend the moratorium. The Obama administration erred when it lied about the findings and used the lie to justify the action. They would have been better off not using it at all, but then the decision to impose the moratorium would look like the thing that it is…. a political decision.
So much for this administration being the one that bases its decisions on science, not politics.
And as far as imposing the moratorium because we don’t know what caused the Deep Horizon to explode? Wrong again. We already have a pretty good idea. But if you want to go down that road… lets:
Lets enforce a moratorium and shut down the flight of every make and model of airplane anytime one of them crashes when the cause of the crash is not immediately known.
Lets enforce a moratorium on all makes and model of cars when there is a mysterious sudden acceleration problem with said vehicles, and arrest any caught driving those models of cars.
Lets enforce a moratorium on heart surgeries every time someone dies of unknown causes during the surgery.
I am appalled at the utter lack of ability of Americans to understand the basic concepts of risk assessment. Each one of us has a much higher risk of dying in a car crash than there is of another disaster in the Gulf similar to the Deep Horizon fiasco.
Rant// Off
June 23, 2010, 1:35 pmA. Zarkov says:
Unless I missed it, no one has explained why Salazar banned drilling deeper than 500 feet instead of 1,000 feet. Was he applying something like an engineering safety factor? One frequently sees an imposed safety factor increase as approvals go up the bureaucratic chain. Each administrator wants to “cover his ass” by requiring more than everyone below thought necessary. Unfortunately few people, even engineers, don’t understand what a safety factor means because they don’t know about the difference between uncertainty (in the Knight sense) and risk. Risk can be quantified with probability theory, but uncertainty can’t. Daniel Ellsberg (of Pentagon Papers fame) wrote the seminal paper on this subject. (Actually it was Keynes, but he’s almost impossible to read.) In the alternative, Salazar is just reflecting his administrations’ hostility to fossil fuels, and simply wants to damage the industry.
June 23, 2010, 1:40 pmStephen Lathrop says:
Professor Adler, thank you for your patient explanation. I think I do understand the notion of arbitrary and capricious. What seems disproportionate to me in this case is legal insistence on precision, detail, and constraint in the face of unavoidable uncertainty. Surely there must be a legally recognizable margin for administrative caution on behalf of the public interest, and perhaps even on behalf of the oil industry.
Suppose for a second that there is some poorly understood factor now just coming to light. To take one of several obvious possibilities, maybe some oil fields in the Gulf are under extraordinary pressure, pressure greater than existing drilling technology can manage. Maybe some of those high pressure reservoirs can be found deep under the seabed, but only under 600 feet of water. What becomes of the offshore oil industry if it gets permission to drill, and then blows out another well that it can’t stop? Won’t offshore oil go the way of the nuclear industry after Three Mile Island?
My point is, when you don’t know why something big and unexpected just happened, why do you assume it makes sense to insist on relying narrowly on information and expertise that just got called into question by events? Why isn’t there room to build a margin of caution around that alleged expertise? Why isn’t caution of that sort within the scope of administrators who are tasked with protecting the public safety and interest, and obligated to manage the consequences of mistakes?
Events in the Gulf have delivered one dismaying certainty that modified previous understandings—sometimes oil drillers can’t control blowouts promptly. Now it’s time to discover the scope and significance of that new understanding. To do that, many current unknowns will have to be probed. A protective moratorium while that is ongoing is hardly arbitrary, let alone capricious. Against that background it strikes me as unreasonable and counterproductive to insist that the line should have been drawn here instead of there—particularly when those doing the insisting have no better basis in poorly-understood reality than anyone else.
Basically, I think I hear you and the judge saying that the administration must abide by the expertise. I’m suggesting that the administration must also be free to use events to judge the adequacy of the available expertise and act accordingly.
June 23, 2010, 1:45 pmKatahdin says:
Change ‘a child’ to ‘children, in aggregate’, and that probability is 1.0. More babies means more oil wells, more reactors, more coal mines, and certainly more extinctions. Sea turtles aren’t endangered because of an asteroid strike – they are endangered because of us.
As for the moratorium, it’s one thing when the governments Need To Be Seen Doing Something leads to silly but harmless results, like National Guardsmen standing around airports sans ammo. Before you put people out of work, you need your reasoning to be somewhat fact based. You can’t just write down the answer; you need to show your work.
June 23, 2010, 1:53 pmMike P Wagner says:
As a non lawyer, I was surprised to read claims that Judge Feldman owned stock in Transocean and several other oil drilling companies directly affected by the ban.
Here’s the yahoo news article that makes this claim:
Judge who overturned …
Here’s the financial disclosure form:
Financial Disclosure Form
Is this form bogus? Would you have expected him to recuse himself, given this stock ownership?
June 23, 2010, 2:01 pmSmooth, like a Rhapsody says:
Does anyone know if Salazar still has a license to practice law? Do any of the legal ethics gurus here know if he has any significant disciplinary exposure here? (I doubt he signed any of the pleadings).
June 23, 2010, 2:03 pmfrankcross says:
Stephen Lathrop, there is a basis for a margin of caution. The Administration kind of bungled its justification. I was still surprised at the overturn, but it’s easily fixed, and the new justification can say “margin of caution.”
But the problem is that we always overreact to unusual events. There is no reason to think the risk is elevated now. Your hypotheses are just guesses, unsupported by evidence. Saying some new “extraordinary pressure” is the cause is like saying the Gulf is infested with gremlins, unless you have evidence.
The NYT poll yesterday was interesting. Gulf residents, with the most skin in the game on possible spills, were heavily against the moratorium. That tells you the economic significance and why imaginary risks should not override that.
June 23, 2010, 2:13 pmSteve says:
The form is not bogus, although it doesn’t tell us if he still owns the stock. If he still owns the stock, he probably was required to recuse himself pursuant to the federal disqualification statute. I’ve posed the question to several litigators around the office (including folks whose politics are opposite mine and folks who just plain don’t care about politics) and they were all quite surprised, to a man, that the judge didn’t recuse himself.
I don’t know that the misleading statement even appeared in any of the pleadings. Frankly, in the context of the report itself, I agree that it was misleading but not in a particularly egregious way. It could have been completely unintentional.
In any event, there may be a world where lawyers face significant disciplinary exposure any time there’s a misleading statement in a court paper, but it is not this world. For something like this, the penalty is that you may get chided in a court decision, which is exactly what happened.
June 23, 2010, 2:14 pmtarpon says:
So how exactly does this work? If the 7/11 robbers trial doesn’t go as planned, all you do is whip out new evidence and go again?
Justice is now what 2 out of three or until I win?
I am really serious, how does this work? Can’t the Judge just reimpose the injunction, since wouldn’t the ‘new evidence’ not the lies, have just been introduced during the original hearing?
Or we tossing out the rule of law or what here.
June 23, 2010, 2:18 pmDilan Esper says:
As I said in the other thread, I can’t comment as to whether the moratorium is arbitrary and capricious as those terms are used in Ad Law.
I do, however, think that the President has extraordinary powers to ground airplanes, impose curfews, cordon off areas, and take other measures in emergencies, unless congress or the constitution says he cannot, and that judges shouldn’t issue TRO’s in ex parte proceedings with only hastily written declarations as evidence that enjoin the president in an emergency.
June 23, 2010, 2:20 pmzuch says:
Prof. Adler:
One difficulty with this is that the report recommended halting drilling from floating drilling platforms, and these are necessary at depths over 500 feet. See pages 3-5 here.
Cheers,
June 23, 2010, 2:24 pmAbdul Abulbul Amir says:
They were brought in for the purpose of giving that appearance. The policy was already cooked.
June 23, 2010, 2:27 pmzuch says:
Prof. Adler:
Why do the letters “I”, “R”, “A”, and “Q” keep coming to mind?
Cheers,
June 23, 2010, 2:27 pmYvette the nolaprincess says:
Forgive my ignorance guys but I am reading this while eating lunch because I live in the region and I am directly affected. Sad, but true. You should know that I think the blanket mortaorium is a big mistake and ill-conceived. It seems that prohibiting those who already have been issued permits from going forward is a very different animal than refusing to issue any new permits. But could someone answer a question? Under what authority is there a right to explore for oil and gas in deepwater in the first place? If there is no absolute right to this it seems that it can be prohibited. I scanned Judge Feldman’s opinion and I get the administrative procedures rules etc. However, I want to get at the root of the right before we even go to administrative procedures.
June 23, 2010, 2:28 pmSteve says:
I think the government is entitled to some degree of extra latitude because of the time element, but let’s remember that this was promulgated as an administrative order, not some super-special emergency declaration by the President. There was a fairly comprehensive 30-day review of safety issues in the Gulf that preceded this order. It’s not like grounding the planes after 9/11 or anything of that sort.
June 23, 2010, 2:29 pmzuch says:
Prof. Adler:
In this case, given Feldman’s nit-picking, that is true almost by definition. But really? Why would review of a TRO be deferential, particularly when the standard for issuing such in the first place is the high bar of “irreparable harm” (which in this case seems to be the “irreparable harm” of monetary losses, rather than other types of damage — say, wiping out thousands of years of coral or extinction of Kemp’s Ridley sea turtles — when such monetary losses are usually found to be the most remediable types of damage).
Cheers,
June 23, 2010, 2:34 pmzuch says:
What a lame ‘analogy’. Scraping bottom at 5000 feet? But you’re wrong on the probabilities here, on best evidence. Alongside of this monumental fustercluck, we have Ixtoc I, as well as the known occurrence of various blowouts on other wells. Adding to the difficulties here is that deepwater blowouts are hard (if not impossible) to fix.
Cheers,
June 23, 2010, 2:40 pmzuch says:
Even Feldman didn’t say “lie”. He said “misleading” (in reaching an inexplicable conclusion). But see my comment here.
Cheers,
June 23, 2010, 2:42 pmzuch says:
Oh, I’m sure that if Feynman hadn’t been around, we would have kept launching shuttles…. Oh, waiddaminnit.
Cheers,
June 23, 2010, 2:45 pmzuch says:
I have. Twice at least.
Cheers,
June 23, 2010, 2:50 pmDavid M. Nieporent says:
Because you’re a one-note partisan hack? As the leftist kids used to say, Moveon.
June 23, 2010, 2:50 pmJonathan H. Adler says:
Just to clarify, I don’t think the judge said the administration must “abide by the expertise.” Interior is not precluded from make more precautionary choices, so long as they make clear that this is what they are doing and why they are doing it (e.g. because they are reluctant to rely solely on expertise given that a blowout of this magnitude and this hard to cap was not anticipated, etc.). What it cannot do is appeal to the expertise to justify a more precautionary response. That is, it can’t take the justification from column A but the policy from column B. It’s the mismatch that is the problem, as it suggests the government is not engaging in reasoned decision-making.
JHA
June 23, 2010, 2:50 pmbailey says:
Couldn’t they just apply for licensing with other countries drilling in the Gulf? Why go through the Department of the Interior or the United States? How does that work.
June 23, 2010, 2:57 pmDavid M. Nieporent says:
And as I said in the other thread,
(1) Why do you keep talking about TROs when this was a preliminary injunction?
June 23, 2010, 2:57 pm(2) Why do you keep talking about “ex parte proceedings” when this wasn’t?
(3) What basis is there for your belief in this inherent power of the president to act, without any statutory or constitutional authorization, just because it’s an emergency?
(4) Assuming arguendo that there is such an inherent power, how does it apply here, when it wasn’t an emergency? (And just to avoid people who like to snark-first-read-later-or-not-at-all, I’ll clarify that last part: I can buy that the oil spill itself is an emergency. But this moratorium was not about dealing with that emergency at all; it was neither an effort to stop the leak nor an effort to clean up the spilled oil. Rather, it simply ordered other companies to cease drilling in other places. Assuming argendo that such cessation is a good idea, that doesn’t mean it’s an emergency that they need to do so. As evidenced by the fact that the president announced the moratorium two months after the leak, not right away.)
zuch says:
I would be quite surprised if there wasn’t a licensed lawyer’s signature on the pleadings. As to Salazar’s “disciplinary exposure” here, what did he do wrong? Why is everyone calling for Salazar’s head (other than he’s part of the Barry Hoooo-sssseeeiinnn
SoetoroObama administration)?Cheers,
June 23, 2010, 2:58 pmDavid M. Nieporent says:
Sorry, I meant two-note.
Give it a rest. Please.
June 23, 2010, 3:03 pmzuch says:
Just looking for some consistency, yaknow. But that might be too much to ask in certain quarters….
As to “one-note partisan hack”, you might peruse my other comments here.
Cheers,
June 23, 2010, 3:04 pmzuch says:
Maybe I’ll give it a rest when someone explains why Salazar can’t rationally put a moratorium on new drilling over 500 feet deep when the panel recommended a moratorium on floating platform drilling (in part because the nature of such requires the use of seabed blowout preventers rather than the more accessible platform-based preventers of fixed platforms), and when floating platforms are required for depths over 500 feet. So far: <*crickets chirping*>
Cheers,
June 23, 2010, 3:10 pmDilan Esper says:
I think the government is entitled to some degree of extra latitude because of the time element, but let’s remember that this was promulgated as an administrative order, not some super-special emergency declaration by the President.
Part of the problem here is the nature of an oil spill– especially given oil companies aren’t honest about spillage estimates– is that it’s only over time that you realize how bad it is and what went wrong. So the fact that this order wasn’t issued immediately after the explosion doesn’t mean it isn’t an emergency order, any more than a Presidential order to ground 757′s that occurred 3 months after a crash but just after a cause was discovered which would render the planes unsafe to operate would not be an emergency order.
June 23, 2010, 3:15 pmSuperSkeptic says:
Why should this matter? Political branches making political decisions. They will be held accountable for their policies. Is this not the forward-thinking position on Administrative Law?
June 23, 2010, 3:28 pmDavid M. Nieporent says:
Frankly, I don’t care enough to read all the relevant documents in depth, but from my cursory review, I don’t see any support for your claim that the panel recommended a moratorium on floating platform drilling. (In fact, that was one of the judge’s complaints — that Salazar completely misrepresented what they said.)
In other words, the question is a legitimate one, but I believe it’s based on a misconception. But either way, the answer to your question involves engineering questions about oil drilling as well as legal questions about standards of review and the APA. Here’s what it does not involve: Iraq, insinuations that Obama is Muslim, taunting people about being democrats or republicans, or the like. That’s what I asked you to give a rest to. At best these things are a distraction; at worst, they’re pure trolling.
June 23, 2010, 3:43 pmLugo says:
I agree completely!
June 23, 2010, 3:44 pmJ Mann says:
Zuch, the panel didn’t recommend a moratorium on floating drilling. The actual scientists recommended a moratorium on new exploratory wells over 1000 feet. The moratorium on “floating wells” was added by Salazar and is opposed by at least a majority of the subject matter experts.
June 23, 2010, 4:06 pmgeokstr says:
Like the consistency demonstrated by someone who cries “the Maldives are sinking!” until it’s debunked and then pooh-poohs that it’s just another tiny island chain and we shouldn’t base our opposition to the AGW hyateria on such irrelevancies.
June 23, 2010, 4:15 pmzuch says:
From the opinion (page 3):
The report itself contains no moratorium recommendations from the scientists and engineers outside of the executive summary recommendation for a moratorium. The scientists and engineers had made specific recommendations (which the later complainers admit they are in agreement with), and they had agreed with a draft that included the Secretary’s 1000 foot moratorium in the summary. They hadn’t made any specific recommendations themselves for a moratorium. They did review the draft report itself and the specific recommendations, many of which had to do with subsea BOPs on floating platforms. But now they complain that the 1000 foot moratorium was changed to 500 feet (when they had not said anything about either limit) when 500 feet is the limit beyond which floating platforms are used. I’d note further that only eight of the fifteen experts listed signed that letter. Quibbling about a 1000 foot limit versus a 500 foot limit seems just a bit disingenuous, when there’s little if anything in the substance of the report to recommend either limit, outside of difficulties involved with seabed BOPs. IOW, they’re quibbling about the form of the executive decision. And in fact, the report doesn’t even mention any 500 foot limit. That is implicit in the ban on floating platforms.
One of the two sole mentions of “1,000 feet” is this generic, introductory line (page 2), which is not part of any recommendation:
But in fact, one of the major complications, as recognised by the full report, is the necessity of seabed BOPs for deeper wells with floating platforms, and the difficulties involved with such (in fact, the report makes much of this).
Cheers,
June 23, 2010, 5:02 pmzuch says:
No. See my post right above.
Cheers,
June 23, 2010, 5:03 pmzuch says:
When the people here stop calling for Salazar’s impeachment, sacking or disbarment, maybe you’ll have a point.
Cheers,
June 23, 2010, 5:05 pmzuch says:
I didn’t say the Maldives are sinking. What I did say is the uncontroversial fact that if sea levels continue to rise (as they’re doing), you’d need SCUBA certification to visit an atoll chain that’s mostly some six feet about MHW. And that hasn’t been debunked, unless you think that someone that thinks that dowsing is good science is an expert….
Cheers,
June 23, 2010, 5:09 pmM. Gross says:
While jack-up rigs are only usable to about 500 ft or so, fixed platforms can be used for drilling in depths up to 1,700 ft. The Troll A Platform sits in almost 1000 ft of water.
It’s not immediately obvious to me why the platform would be an issue, if anything, it was rather fortunate the Deepwater Horizon was a floating structure, as otherwise the wellhead would probably be buried under the wreckage of the rig.
June 23, 2010, 5:12 pmJ Mann says:
Ok, fine.
As far as I can tell, the panel didn’t recommend a moratorium on floating drilling. The panel reviewed a report that included a proposed moratorium on new wells at depths over 1,000 feet. At least a majority of the subject matter experts on the panel state that their factual findings don’t support a moratorium on drilling from 500 to 1000 feet, nor do they support a 6 month ban on existing wells.
You state: “the panel recommended a moratorium on floating platform drilling” Do you have a cite for that?
June 23, 2010, 5:12 pmzuch says:
Re: The “500″ versus “1000″ dispute:
From the letter:
Ohhhh. So they were saying that 1000 is the cutoff they argued for, rather that the 500 (or more accurately, floating platforms)?!?!? Funny way of saying it.
I’d also note that “peer-reviewed” doesn’t mean that they had to agree with any recommendations. Their input was taken, and acted on, I’m sure, but no guarantees of satisfaction as to individual views on all points.
Cheers,
June 23, 2010, 5:14 pmJ Mann says:
1) The report says “The recommendations contained in this report have been peer-reviewed by seven experts identified by the National Academy of Engineering.” (Page 4). That statement seems pretty clear (and false).
2) The report analysis doesn’t focus on floating platforms — it focuses on “deepwater”. (Search the report for “floating” and “deepwater” to see the difference.) When the experts did their peer review, they seem pretty clearly to have understood deepwater to mean 1000. See for example, page 8 (“the risks associated with operating in water depths in excess of 1,000 feet are significantly more complex than in shallow water. This report describes safety and environmental issues involved in offshore drilling, including the unique challenges associated with drilling operations in deepwater”) or page 9 (chart identifying wells >1000 feet as “deepwater.”
You may be right that the issue is not “deepwater” but “floating wells,” but as far as I can tell, that conclusion (1) wasn’t raised by the scientists and (2) wasn’t reviewed by them.
June 23, 2010, 5:27 pmDavid M. Nieporent says:
Yes, I read that document; I just didn’t read all the supporting documents. But the whole point is that the opinion is pointing out that Salazar misrepresented the facts, so I’m not sure why you’re quoting the opinion’s quoting of the report as though it supported your position.
I don’t know what ball you’re trying to hide here. What does it matter whether the experts took the initiative to make the recommendations or whether the experts reviewed the recommendations made by others and gave their seal of approval to them? The important fact is, the experts endorsed one set of recommendations, and then Salazar surreptitiously changed those recommendations while simultaneously claiming that the experts had endorsed them.
What they complain about is that they endorsed one set of recommendations — the 1,000 foot ones (so, in other words, it’s wrong to say that they had not said anything about either limit) — and then Salazar changed the report to say something different, about “floating platforms.” But they didn’t say that.
Uh, if the substance of the report doesn’t support either limit, that’s hardly a point in favor of the administration’s action.
Yes, that’s what happens in an admin law context. The form of a decision is what determines in large part whether it’s legitimate.
Nothing you’ve said here addresses the point: the panel did NOT recommend a moratorium on floating platform drilling; Salazar changed the report to make it look as if they had. The panel endorsed only (relevant to this context) a moratorium on 1,000 foot drilling.
June 23, 2010, 5:28 pmzuch says:
The executive summary of the panel report does. It’s implicit in the specific recommendations that BOP safety be reviewed and assured, particularly for seabed BOPs.
The draft recommendation included an executive summary for a moratorium on 1000 foot drilling. This draft report was reviewed by the experts. But this recommendation is the action taken to achieve the other recommendations, and is more procedural than substantive. Putting a moratorium on floating platforms (and the concomitant seabed BOPs) is actually more closely aligned with the specific recommendations in the body of the report that would be an arbitrary 1000 foot limit. You want “arbitrary and capricious”, that would the the 1000 foot cutoff.
Cheers,
June 23, 2010, 5:31 pmzuch says:
“Deepwater” wells are necessarily floating.
One of the main problems with floating platforms is the possibility that the platform can be dislodged/moved and the pipe broken (or forced to disconnect). This is why you need seabed BOPs for floating platforms, while you can have surface BOPs for fixed platforms.
Cheers,
June 23, 2010, 5:35 pmzuch says:
Maybe that’s why the moratorium doesn’t say “500 feet” but rather specifies “floating rigs”, eh?
Cheers,
June 23, 2010, 5:38 pmzuch says:
Whether it is legitimate is whether it was reasonable (and not “arbitrary and capricious”) for the Secretary to take the action. On the face of the report, it was not “arbitrary and capricious” to put in a moratorium on “floating rigs” when even the experts had signed on to a moratorium of “deepwater” drilling (arbitrarily set at 1000 feet), and the substance of the report recommended inspection and/or revision of the seabed BOPs needed for such (specifically for the floating rigs used for “deepwater” drilling).
Cheers,
June 23, 2010, 5:44 pmDavid M. Nieporent says:
But the whole point is that Salazar pulled this idea out of his ass! The scientists (who he claimed endorsed that) didn’t in fact do so; he changed the report after they had seen it.
Since you’ve seen their letter, I don’t know why you keep ignoring the changes he made to the report, which they specifically pointed out.
June 23, 2010, 5:50 pmM. Gross says:
Quoting from the opinion, which in turn quotes from the notice the MMS issued lease holders:
The Six-Month Deepwater Moratorium . . . directs you to
cease drilling all new deepwater wells . . . and puts you
on notice that, except as provided herein, MMS will not
consider for six months from the date of this Moratorium
NTL drilling permits for deepwater wells and for related
activities as set forth herein. For the purposes of this
Moratorium NTL, “deepwater” means depths greater than 500
feet.
I don’t see anything about floating drilling rigs there, only a depth.
June 23, 2010, 5:52 pmFury says:
zuch at 2:34 Pm
Oh please. The Kemp’s Ridley turtle is not going to become extinct. Study how the population was stabilized after the spell of Ixtoc 1. The population is stable and recovering due in large part to efforts by US and Mexican biologists in places like Tamaulipas, Mexico. Have KR turtles died due to the oil spill? Absolutely. But mentioning them becoming extinct – good grief.
June 23, 2010, 6:35 pmElliot says:
If you are referencing the fact that the reported discharge rate increased over time, one has to factor reservoir erosion before passing judgement on anyone’s honesty. It is quite plausible that the rates reported were accurate when reported.
It is also quite plausible that the rates will increase from today. If so, that would not mean today’s reports are incorrectly stating today’s discharge.
June 23, 2010, 6:36 pmHarry Schell says:
Blowouts on offshore rigs world wide have occurred about every 10 years for the last 40. This blowout is the deepest one ever to occur, and 5 kft is not that deep. Much drilling is done in deeper water, and Obama just sent $2B to Brazil to help finance exploitation of a field offshore of Brazil that averages half again to more than double this depth.
So Obama thinks drilling in far deeper water off Brazil is worth US taxpayer funds, but all rigs in US waters must shut down because we have experienced two blowouts in US waters in 40 years (the other two were not in US waters)? Huh?
June 23, 2010, 6:42 pmHarry Schell says:
Maybe you have something other than ridicule to offer as to why this is silly?
June 23, 2010, 6:44 pmzuch says:
The reviewers weren’t the people that came up with the “1000 foot”/”floating rig” criteria. I think the report was prepared with input from many people, and then reviewed by these eight people (as well as some others that didn’t complain). And as I pointed out above, it’s hard to see their complaint as being about the 1000 foot number, but rather with the total ban on new deepwater drilling. But they are free to disagree. And they may be incensed that there’s some implication that they signed on to the recommendation because they were some of the reviewers that undisputably “peer-reviewed” the dociument, Salazar didn’t say that these eight recommended a moratorium (even though they did say they agreed with the draft report) which did recommend such).
Cheers,
June 23, 2010, 7:17 pmzuch says:
The report’s recommendations include a moratorium on drilling from “floating rigs”. As the opinion points out, these must be used for drilling over 500 feet deep (see page 5).
Cheers,
June 23, 2010, 7:23 pmElliot says:
Anyone wonder what we would do if a Chinese well in Cuban waters blew, oil was flowing unchecked from the broken riser, and a huge slick was moving towards the US?
Or, suppose some geological event released a huge amount of oil that was moving towards US shores? This removes all the legal wrangling and finger pointing.
Is the US prepared to meet those challenges?
June 23, 2010, 7:56 pmnicehonesty says:
21 out of 83 comments in this thread, 37 out of 190 comments in the earlier thread.
June 23, 2010, 8:18 pmDesiderius says:
So will Sen. Salazar get to put one of those reflectors on the back of his limo?
June 23, 2010, 9:13 pmArthur Kirkland says:
You want a side of Freedom Fries with that, or are you content with a homicide bomber and the death tax?
June 23, 2010, 9:24 pmElliot says:
Those sound like man-caused disasters.
June 23, 2010, 9:55 pmDavid M. Nieporent says:
The ALTERED recommendations. I swear I can’t tell if you’re being thick or dishonest. You can’t keep quoting the report that Salazar fudged in support of Salazar’s fudging! The actual scientists did not endorse the moratorium on drilling from floating rigs. That’s just what Salazar made up and falsely claimed they endorsed.
June 23, 2010, 10:38 pmAmericanMinority says:
Hello,
Very insightful posts on this forum.
A few folks have pointed out the obvious (to those who care to actually look for themselves); the moratorium was, and is, clearly political.
Look it up for yourself… Google the (mostly unreported) story of $2B US taxpayer dollars being loaned to Petrobras (Brazil) by the current administration for deep water oil exploration at depths in excess of 12,000 feet. Then google info about mr. “capatalism-has-failed” Sorros’ $900M+ interest in Petrobras… Hmmm…
Guess who the first bidder was on the idled drilling rigs … like, immediately?
How about a moratorium on that little venture?
Sheesh… when is someone going to jail?
June 23, 2010, 11:21 pmArthur Kirkland says:
I assume from this analysis, Harry, that you considered the decision to invade Iraq the single dumbest thing you have seen in your life, by a substantial margin, even before considering the botched occupation, the immorality of torture and limitless detention of innocents, the affronts to the Constitution, nthe drift in Afghanistan, the radicalization of Pakistan (and beyond), the grotesque corruption and incompetence, etc.
If so, good for you; your consistency in argument is laudable.
June 23, 2010, 11:31 pmPaul Allen says:
Stephen writes:
Nonsense. The same ‘experts’ that the administration used to review its report have come out to say that the moratorium is an exceedingly bad idea.
They attested as much to the court, and court relied upon this, in part, while making its determination.
The basic fact is that the deepwater horizon was shutting down and disconnecting from the well when the blow-out occurred. Implementing the moratorium is an order to execute the most dangerous step NOW before any determination is made as to how operations may be shutdown more safely.
June 23, 2010, 11:56 pmzuch says:
The (final) report’s recommendations. It’s there. That portion of the report is also quoted in the opinion, FWIW (see page 3). I answered M. Gross’s question. What’s your problem?
Even the present nay-sayers claim agreement on the moratorium on deepwater drilling, despite their saying in the very same letter that they didn’t endorse a comprehensive moratorium (and also spending time to explain that lots of wells have been drilled not only deeper than 1000 feet but much deeper, leading one to wonder whether their beef is with the 1000 foot cutoff or rather with the imposition of a blanket moratorium for all wells deeper than 500 feet). That some of the reviewers are disappointed that the prohibition on deepwater drilling initially set (but not by the scientists) at 1000 feet was changed after review to a more logical ban on floating rigs is their problem.
But Salazar said they peer-reviewed the report, not that the reviewers, each and every one, “endorsed” the moratorium on floating rigs (which is what all rigs for depths over 1000 feet are).
Cheers,
June 24, 2010, 12:19 amzuch says:
More of that “the
RussiansChinese are coming, theRussiansChinese are coming!” hysteria, eh? Take a Haldol and call me in the morning.Cheers,
June 24, 2010, 12:26 amzuch says:
That’s what they do when they’re done drilling. They then bring in a different type platform for recovery operations. This is the normal course in putting the wells into service. You’re saying this is dangerous? If so, then good thing someone had the sense to stop it until we figure out how best to do it safely.
Cheers,
June 24, 2010, 12:31 amElliot says:
Don’t like the Chinese idea? OK. Let me rephrase it.
Anyone wonder what we would do if a Cuban well in Cuban waters blew, oil was flowing unchecked from the broken riser, and a huge slick was moving towards the US?
June 24, 2010, 12:36 amM. Gross says:
But Salazar said they peer-reviewed the report, not that the reviewers, each and every one, “endorsed” the moratorium on floating rigs (which is what all rigs for depths over 1000 feet are).
If you’ll look at my original post, I give examples of fixed structure rigs in 1000 feet of water. The notice from MMS does not specify the type of rig, it merely bans them all based on depth, a decision that is irreconcilable with the report.
The ban might have passed muster if he had banned drilling by rig type, or even by BoP type, but they did not do so.
June 24, 2010, 10:47 amzuch says:
DoI is going to ask the judge for a stay so the decision can be appealed.
Cheers,
June 24, 2010, 10:56 amzuch says:
The Troll I type platform is not used in the Gulf of Mexico (and may not even be suitable for such). It is undoubtedly far more expensive than jack-up rigs. Maybe you can tell me when some oil company asks for a waiver to build one of these platforms in the Gulf of Mexico and is turned down.
The depth limitation is perfectly reconcilable with the report, seeing as floating rigs are used for depths greater than 500 feet. Remember that regulations and such need not be perfect, only reasonable (with a very lenient standard of “not arbitrary or capricious”), and that it is.
Because floating rigs need seabed BOPs, they’re a problem … as we have seen.
It was not in the least fortunate that the Deepwater Horizon was a floating rig. It exploded and sank, leaving a twisted mess of pipe (which had to be cut off to even try to put on a containment cap, a process that took weeks, if you didn’t notice). And the BOP, miserable excuse for safety equipment that it was, is now pretty much non-functional, inaccessible, and irreparable.
Cheers,
June 24, 2010, 11:11 amzuch says:
Probably what the Cubans are doing right now. Waiting to see it it hits them, and then slapping us with a big ticket cleanup/damages suit if it does.
What do you think we’d do to the Cubans? Nuke them?!?!?
Cheers,
June 24, 2010, 11:14 amDavid M. Nieporent says:
My problem is that you keep citing the “final report” as though it provided support for the moratorium, when in fact the final report itself is the problem, because Salazar had fudged it. For an action under the APA to be legitimate, it has to have a legitimate basis; you can’t scribble something on a sheet of paper and then say, “See, this piece of paper supports my position so my position isn’t arbitrary.” Your own whim cannot constitute the support for your proposed action.
As for answering M. Gross’s question, he was asking about the notice the MMS issued to lease holders.
I don’t understand your use of the word “despite” here. They didn’t endorse a comprehensive moratorium; they endorsed something less. Why are you trying to present these as contradictory?
You can read their letter to see what “their beef” is. Their beef is both procedural — Salazar misrepresenting to the court what they said — and substantive — they don’t agree with a blanket ban.
No, it’s Salazar’s problem; lying to a court and claiming that they supported something when they didn’t is a good way to lose a motion. Which, in fact, happened.
This argument is both false and disingenuous, and if you made it in court, sanctionable. It’s false because they did not peer-review the report; they peer-reviewed a DIFFERENT report, which Salazar then changed after they saw it.
It’s disingenuous because, yes, Salazar was claiming that the reviewers endorsed it. Otherwise, the fact that they “reviewed” would be meaningless trivia. He was citing their actions as support for the moratorium — but if they “reviewed” it and disagreed with it, then their actions wouldn’t constitute support for the moratorium.
What does that have to do with the price of tea in China? Rigs for depths over 1000 feet have many characteristics. You can’t pick out one of those characteristics (that they “float”) and claim that a ban on rigs with that characteristic is the same as a ban on deepwater rigs. That’s simply a logical fallacy, on the order of the classic, “All men are mortal. Socrates is mortal. Therefore all men are Socrates.”
June 24, 2010, 11:14 amDavid M. Nieporent says:
But the report doesn’t provide any basis for attacking “floating rigs” as such; indeed, it barely mentions them.
The fact that Salazar took a report that did not identify floating rigs as the problem and then tacked on a recommendation about banning floating rigs is, in fact, what makes it arbitrary and capricious.
June 24, 2010, 11:17 amzuch says:
Not a single mention of “deepwater” BOPs (or “blowout prevention”) there. Nope. None. They weren’t worried about that in the the least.
Cheers,
June 24, 2010, 11:53 amElliot says:
I think you are correct. Obama would wait for the oil to hit US shores, destroy fisheries, and then mobilize lawyers.
June 24, 2010, 11:56 amDavid M. Nieporent says:
If we’re discussing a traffic accident and I say that there was no traffic light at the intersection, do you point and say, “There’s a speed limit sign right there.”? If I say that there’s no posted sign about having pets, do you point to a sign that says, “Keep off the grass”?
Because I’m at a loss to figure out why you pointed to something about “deepwater” when we’re discussing floating rigs. They’re two different words and refer to two different things.
June 24, 2010, 12:44 pmJ Mann says:
David: I don’t think anything will convince Zuch. If there is anyone else here who is confused about this issue, maybe we could talk to them, though.
Basically, Zuch’s argument comes down to this.
1) The subject matter experts peer reviewed and approved a report that expressed concerns about “deepwater” drilling. (And defined deepwater in various places as >1000 feet).
2) All floating rigs necessarily present the same risk/benefit analysis as the deepwater drilling discussed in the original report.
3) All drilling >500 feet is done by floating rigs.
Therefore, when Salazar changed the report to recommend a moratorium on all drilling by floating rigs, he was just editing the report to draw a necessary conclusion from the experts’ original conclusions.
#2 and #3 are expert-level assertions that probably should have been made by the scientists, not by a lawyer like Salazar. I’m not a petroleum engineer, and therefore have no personal idea if they’re true.
However, given that many of Salazar’s experts disagree, and as far as I know, none of them agree with his conclusion, I don’t have a lot of confidence.
June 24, 2010, 1:55 pmwlpeak says:
The precautionary principle, post-disaster codicil.
No cavalier is an interesting word.
Whether the decision was cavalier would depend on how much or little thought the Judge put into it. Right?
I believe the Judge’s decision was based on expert opinions, yours on some newspaper articles.
June 24, 2010, 3:49 pmWhich one strikes you as more cavalier?
wlpeak says:
Whether the oil companies, or just the one oil company, were cavalier, or whether the Government regulators were cavalier, will be born out by the number of similar accidents, no?
June 24, 2010, 3:55 pmzuch says:
Because — as I’ve stated more than once — deepwater rigs are floating rigs (M. Gross’s exceptional North Sea multi-well NG platform notwithstanding … or, actually, I do hope it’s “withstanding”) — and floating rigs require seabed BOPs.
Cheers,
June 24, 2010, 5:42 pmzuch says:
This is an arbitrary distinction (and they certainly didn’t define it strictly “in various places” in the report). In fact, the real difference (in terms of engineering and safety) is whether it’s floating or not. And, as even Judge Feldman states in his opinion, that limit is around 500 feet.
I see you acknowledge this.
Do you think he did this, or perhaps it was suggested by some of the peer-reviewers? In any case, it seems a more sensible distinction, particularly when the report is citing lots of reviews of blowout prevention and BOPs in “deepwater”.
Their main complaint (in their letter) seems to be with the nature of the ban and less with the 1000 foot/500 foot distinction (or more accurately, the 1000 foot/floating rig change.
There’s two main changes:
1). The change from no new permits for >1000 foot rigs to no new permits for floating rigs.
2). The change from a “temporary” pause in the drilling operations on the 33 deepwater platforms now permitted (long enough to do the checks on BOP function and other more specific recommendations) to a 6 month halt to operations on the very same 33 platforms (where in the draft, it referred to “deepwater” platforms and in the final report to “floating rigs”, emphasising the identicality of the two)
From the letter from the experts, they seem to take most issue with the “blanket moratorium”, which seems to be more with the 6 month halt to the platforms already underway as opposed to a “temporary” halt long enough to test the BOPs and well barriers. Perhaps they feel that we don’t need a more in-depth (so to speak) review of BOP design and failure modes for these wells, as their BOPs are already down there and can’t be swapped out even if they do have a ~50% failure rate when attempted to be activated….
But they also seem to worry a bit about the financial impacts and minimise the size of the spill:
and
Maybe they might think about revising these parts, eh?
As to whether other peer reviewers disagreed, we don’t know, but I’d note that people that agreed with the final report aren’t likely to write public letters about it. Complainers are usually the loudest….
Cheers,
June 24, 2010, 6:14 pmzuch says:
I just can’t wait till we get enough for a statistically significant sample … and it seems I am not alone.
Cheers,
June 24, 2010, 6:17 pmElliot says:
We have thousands of wells in the gulf. Lots more around the world. Enough for a significant sample? How many do we need?
June 24, 2010, 6:26 pmDavid M. Nieporent says:
I guess you really don’t get this. Even if deepwater rigs are floating rigs — and you’ve already been forced to admit that they’re not — floating rigs are not deepwater rigs.
June 24, 2010, 8:29 pmDavid M. Nieporent says:
This seems to be your personal view, but as it is not the view of the actual experts and as googling does not reveal any petroleum engineers named “Arne Langsetmo,” I see no reason to credit it.
June 24, 2010, 8:39 pmzuch says:
Potentially true, but I’m not sure if in fact so. But the opinion complained that the final report dealt with “floating rigs” (which is what makes the most sense, anyway) so irrelevant.
I note that the 33 “deepwater” wells underway in the draft report are presumably the same 33 “floating rig” platforms in the final report.
Let me know when any oil company sinks a Troll A platform in the Gulf of Mexico.
Cheers,
Cheers,
June 25, 2010, 12:20 amzuch says:
Really? Where did they (or even the eight of the fifteen peer-reviewers) say that?
The actual experts that contributed to both the draft and final report expressed great concern about making sure that “subsea” BOPs are working reliably (and cited many reports on this very topic [see, e.g., June 25, 2010, 12:47 am