Wednesday, June 23, 2010

The Injunction Against the Off Shore Oil Moratorium and Jeffrey Toobin's Not So Great Legal Analysis

I am not a big fan of most legal analysts on the cable news shows. I don't care if they are liberal or conservative. Of course most have a liberal slant besides the folks on FOX.

Now I understand thatall these folks have a particular world view. Law Profs are the same way. However in Law school in an effort to educate their students Law Profs on the whole do a good job of playing Devil's Advocate to their students in order to educate. On the cable news not so much which is a shame because that is needed.

Which brings us to CNN's Jeffrey Toobin. I am not a Toobin hater but I have never found him all that brilliant either. I am not sure why he is still around. Perhaps at CNN he is like the furniture you get used to him. I always thought that a good liberal to replace him would be Dahlia Lithwick of Slate. She might be an annoying liberal at times but at the very least she has an ability to explain process in an entertaining way.

Last night the subject was the Federal Judge lifting the moratorium against some kinds of offshore drilling. I so wished I could get a trancript to link.

Now Toobin liked many seemed to be shocked at the outcome. I was not very hopeful it would be overturned but I was not shocked at all!!

Toobin appeared to me to not even had read the opinion by the Judge that he was criticizing left and right. Here is the ruling. Further it seemed to me that he seemed sort of fuzzy on administrative law which seems strange for a Legal analyst covering the Washington scene.

He said the JUDGE looks Activist. What does this Judge know that the Obama's "experts" do not. I suppose in the Toobin world he would just the eliminate the Judicial function the Administrative Procedure Act (APA) gives to the Judicial branch in these cases. The Government just wins all the time I suppose.

What was telling was that Toobin said the Judge was ignoring the Obama administration's own experts!! That is one reason why I don't think he really read the Opinion!!

From the Opinion
If the MMS and the Department truly were incompetentand corrupt, as the intervenors insist, the Court fails to see howthis conclusion supports the government’s position. Indeed, whilethe government makes light of the fact that several of the expertsdisagree with the recommendations in the Report by noting that theydo not disagree with the findings, of greater concern is themisleading text in the Executive Summary that seems to assert that all the experts agree with the Secretary’s recommendation. Thegovernment’s hair-splitting explanation abuses reason, commonsense, and the text at issue.

Rules of thumbs:
Consulting experts is good
Ignoring their advice is bad
Trying to "mislead" the Judge on what the experts said not very good at all.

The real story here is the Dept of Interior and its Lawyers really messed up!! They were sloppy. It might be shocking but something that appears to be of Presidential whim and fiat is not going to pass muster.

Judge Blocks Offshore Drilling Moratorium is a good post at The Volokh Conspiracy where there is a lot of good comments. One comment sums up the Government problem as to the case

Oh? Can you explain why the moratorium is for 6 months and not 7? Why not 12? Why not 20? The MMS didn’t explain why they chose 6 months and none of the documents they considered explained why a 6 month delay is the appropriate amount. That is the definition of an arbitrary agency decision — as in “arbitrary and capricious.”

Similarly, the MMS never explained why the moratorium was to be applied to all drilling under 500 feet, rather than, say 1000 feet. In fact, the judge pointed out that many of the documents relied on by the MMS suggested a moratorium on drilling below 1000 feet, not 500 feet.

No explanation for the 500 feet ban is in the MMS order or the documentation the MMS cited. Again, that’s the definition of an arbitrary agency decision.

Several commenters keep suggesting that it’s manifestly obvious why a moratorium is appropriate. It is not obvious why the moritorium is for 6 months and for drilling under 500 feet. More importantly, the MMS didn’t demonstrate these “manifestly obvious” reasons or rely on them in making its decision.
The judge got it right

This in many ways is the real story. This is also why it appears that the Obama administration realized appealing to the 5th circuit is likely to be useless. They have to start over because well the Govt Lawyers were sloppy. In fact the real issue I suppose is not the lawyers but the Obama administration thinking they can bypass all this Administrative law stuff. Which is kinda of shocking. If you are going to interfere with hundreds of millions of dollars worth of contracts, workers livelihoods, and the survival of entire businesses then one would seem that that it would be important to dot the i's and cross the t's.

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