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Are DOJ and DOI Making A Competent Legal Effort On Gulf Moratorium?

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Exactly one week ago, in a post entitled Judicial Ethics in the Gulf: Judge Feldman’s Conflicts and DOJ Malpractice, I related the patently obvious, and disqualifying, statutory ethical conflicts on the part of the Federal judge in the Eastern District of Louisiana, Martin Feldman, who made the curious and shocking decision to stay enforcement of the Obama Administration’s six month deepwater moratorium. As I pointed out, it legally was somewhat astounding the government did not raise Feldman’s conflict at any opportunity:

With this knowledge in the public sphere at least substantially by the night after Feldman’s decision, the government nevertheless did not even mention it as a ground in their attempt to stay Feldman’s ruling at the district court level when they filed their motion to stay at the district court level late the following day. That motion was in front of Feldman himself, so maybe you could rationalize the government not raising it at that point (although I would have posed the motion to stay to the chief judge for the district and included the conflict as grounds for relief were it me).

Having predictably received no relief in their lame request for stay from Feldman, the judge who had just hammered them (not surprising), the government put their tails between their legs and made preparations to seek a stay from the 5th Circuit. Surely the government would forcefully argue the glaringly obvious egregious appearance of both conflict and lack of impartiality once they were free of Feldman and in the Fifth Circuit, right? No, no they didn’t.

When the government filed their motion for stay in the 5th Circuit mid to late day Friday June 25, a full three days after getting hammered by oiled up Judge Feldman, and after Feldman’s most recent 2009 financial disclosure had even started being released to the general public (as evidenced by the literally damning piece on it Rachel Maddow did Friday night), the government STILL did not avail themselves of the glaringly obvious argument of conflict by Feldman. Nary a peep from the fine lawyers at the DOJ on one of the most stunningly obvious arguments of judicial bias in recent memory.

Another week later, and there STILL is no peep from the government on an issue that would be critical to reinstating their moratorium if they really wanted to. But while the government lawyers refuse to zealously litigate the position they claim to support, intervenors represented a by law school clinic professor and two lawyers for environmental groups have done the work the government should have done. On Friday June 2, Defendant-Intervenors filed a Motion to Disqualify Feldman in the district trial court and properly noticed the record at the 5th Circuit.

From the D-I Motion to Disqualify:

Pursuant to 28 U.S.C. § 455, Defendant-Intervenors Defenders of Wildlife, Sierra Club, Florida Wildlife Federation, Center for Biological Diversity, and Natural Resources Defense Council (collectively “Defenders”) respectfully move this Court to disqualify itself from Read more →

Judicial Ethics in the Gulf: Judge Feldman’s Conflicts and DOJ Malpractice

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Last week Federal district court judge Matin Feldman of the Eastern District of Louisiana (EDLA), in what has become a controversial decision, overturned the six month moratorium on deepwater oil drilling imposed by the Department of the Interior. It was a legally curious decision to start with as it, on its face, appeared to be contrary to the well established standard of review.

Almost immediately from the time Judge Feldman’s decision hit the public conscience, information on Feldman’s undisclosed (at least on the case record at issue) financial ties to the oil and gas exploration industry started coming out of the woodwork. From Saturday’s Washington Post:

The federal judge who presided over a challenge to the Obama administration’s six-month moratorium on deepwater oil drilling simultaneously owned stock in an oil company affected by the ban, according to a financial disclosure statement released Friday.

U.S. District Judge Martin L.C. Feldman sold the stock in Exxon Mobil 14 days after the case was filed in New Orleans by a group of oil service firms — and less than five hours before he struck down the moratorium.

Feldman said in a statement elaborating on the disclosure that he was unaware of his holdings in Exxon Mobil and a smaller oil company until 9:45 p.m. Monday, the day before he issued his ruling.

“Because he remembered that Exxon, who was not a party litigant in the moratorium case, nevertheless had one of the 33 rigs in the Gulf, the judge instructed his broker to sell Exxon and XTO [Energy Inc.] as soon as the market opened the next morning,” according to a statement released by his chambers and reported by Bloomberg News.

Even before this latest disclosure, Feldman was criticized by environmental groups and others for not recusing himself from the case. The groups pointed to his 2008 disclosure form, which showed that he had invested in companies involved in offshore oil and gas exploration.

So Judge Feldman not only held numerous oil and gas interest stocks, but was trading them up to and including the morning of his fateful decision, and doing so out of an admitted realization that he had an appearance of ethical conflict. Feldman owned and was trading Exxon stock, a company whose Gulf of Mexico rigs were losing money at the rate of a half million dollars a day due to the moratorium, during the entire time he was assigned the case. Yet, failing to disclose his appearance of conflict on the record or recuse, Feldman nevertheless proceeded to issue a questionable decision clearly benefitting the oil and exploration industry he is so invested in.

Lest there be any confusion that perhaps Judge Feldman somehow put himself in the clear by suddenly selling off his holdings in Exxon on the morning of June 22 just hours before issuing his surprising opinion Read more →

BP’s Own Internal Documents Prove It Knew Its Oil Leak Estimates Were Bogus

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In today’s Natural Resources Hearing on the BP Disaster, Ed Markey brought out proof that BP knew it was lying about the flow of oil from its disaster. He brought two BP documents showing that even when their Chief Operating Officer Doug Suttles was giving low-ball estimates of 1,000 BBL/day, BP’s own internal documents showed that their best guess was 5,758 BBL/day.

The fact is BP has not been entirely candid and open with the American people about this disaster. Mr. Secretary, initially, BP estimated that 1,000 barrels of oil per day were leaking into the Gulf. On April 28, 2010, a new leak was discovered and Coast Guard officials pushed BP to increase the estimate to at least 5,000 barrels per day. However, BP’s Chief Operating Officer Doug Suttles was initially quoted that day–April 28–saying that he believed that the flow rate of 1,000 barrels per day was accurate and that “Due to its location, we do not believe that this new leak changes the amount currently believed to be released.”

Yesterday, BP provided me with an internal document dated April 27, 2010, and cited as BP Confidential that shows a low estimate, a best guess, and a high estimate of the amount of oil that was leaking. According to this BP document, the company’s low estimate of the leak on April 27 was 1,063 barrels per day. It’s best guess was 5,758 barrels per day. It’s high estimate was 14,266 barrels per day. BP has also turned over another document dated April 26 which includes a 5,000 barrel per day figure as well. So when BP was citing the 1,000 barrel per day figure to the American people on April 28, their own internal documents from the day before show that their best guess was a leak of 5,768 [sic] barrels per day and their high estimate was more than 14,000 barrels that were spilling into the Gulf every day. [my emphasis]

As Markey goes on to point out, BP’s intentional low-balling might have been designed to help them argue for a $5-15 million penalty per day as opposed to a $14-42 million penalty.

Secretary Salazar promised several times during the hearing that the government would release its own estimate of the flow sometime today.

Breaking! Obama Cabinet Official Looks Backward!

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Doug Lamborn (R-CO Whiner) complained to Ken Salazar that there had been too much focus on the sex and drug scandal of MMS under the Bush Administration.  Salazar let him have it.

Lamborn: We all want to get to the bottom of this tragedy. And I think we all agree that finger-pointing will not get us there. I don’t understand–I have to be real honest here–why you and others keep harping on what MMS did or didn’t do in the previous Administration, when you did know about these problems when you came into office and you have been in charge of them for more than a year now. Why aren’t we talking about the here and now?

Salazar: Well we are talking, Congressman Lamborn, about the here and now, and that’s why people have been terminated, people have been referred over to prosecution, and we’ve done a lot to clean house at MMS. Unlike the prior Administration, this is not the candy store of the oil and gas kingdom which you and others were a part of. And so we have moved forward in a manner that is thoughtful, that is responsible, that holds those accountable. And those who violate the law, Congressman Lamborn, will be terminated and whatever other sanctions of law are appropriate, those sanctions of law will be applied.

On February 4, 2009, after Salazar halted some of Bush’s drilling efforts and asked DOJ to reconsider for prosecution some of those involved in the worst MMS scandals, I mused with some surprise that Ken Salazar was at that point the high point of the Obama Administration for me.b

And for his strengths and weaknesses since then, I gotta say that Salazar is still the only one who looked backward in timely manner and because of that could say, this clearly, that he had put the corruption of the Bush Administration behind him.

Congress’ 30-Day Deadline for Rubber-Stamping Exploration Plans

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The other day, when Sheldon Whitehouse asked Secretary of Interior Ken Salazar why BP had gotten an exemption from the full-blown NEPA process from which it presumably should have been categorically excluded, Salazar referenced a 30-day deadline from Congress to approve exploration plans.

Senator, there has been significant environmental review, including Environmental Impact Statements that has been conducted with respect to this activity in the Gulf of Mexico. It is an area where we know a lot about the environment, we know a lot about the infrastructure that is there. The question of the categorical exclusion in part relates to the Congressional 30-day requirement that MMS has to approve or disapprove an exploration plan. [my emphasis]

Mineral Management Service Director Elizabeth Birnbaum elaborated on this 30-day deadline on Wednesday.

Under the National Environmental Policy Act we’re required to examine the environmental impacts of any major federal actions, certainly the oil and gas leasing is a major federal action. We have conducted many Environmental Impact Statements before we get to the point of an individual well drilling decision. We conduct an EIS on the full 5-Year Plan for oil and gas drilling, We have conducted EIS on the lease sales in the Gulf and then separately in Alaska. We also conducted some separate Environmental Impact Reviews on leasing in the particular area–drilling in the particular area in the Mississippi Canyon here in the Gulf. When we get to the point of deciding on an individual exploration plan for a particular permit, we are under a statutory obligation under the Outer Continental Shelf Lands Act to make a decision within 30 days. That very much limits our ability to conduct environmental reviews. Many of our environmental reviews are categorical exclusions. We review that to determine whether there’s a trigger for us to do a full Environmental Assessment, which we did actually on exploration plans for Arctic drilling. But we’re still limited to that 30-day decision, and we have to still make a decision on whether to go forward with an exploration plan within 30 days, which limits the amount of environmental review we can conduct. In the package that the Administration sent up to provide additional appropriations, we also asked to lift that limit in the Outer Continental Shelf Lands Act to allow 90 days or more to provide more full analysis of exploration plans before drilling.

Here’s a history of the OCSLA. The 30-day requirement itself is described in the plan approval process of the OCSLA.

(1) Except as otherwise provided in this subchapter, prior to commencing exploration pursuant to any oil and gas lease issued or maintained under this subchapter, the holder thereof shall submit an exploration plan to the Secretary for approval. Such plan may apply to more than one lease held by a lessee in any one region of the outer Continental Shelf, or by a group of lessees acting under a unitization, pooling, or drilling agreement, and shall be approved by the Secretary if he finds that such plan is consistent with the provisions of this subchapter, regulations prescribed under this subchapter, including regulations prescribed by the Secretary pursuant to paragraph (8) of section 1334 (a) of this title, and the provisions of such lease. The Secretary shall require such modifications of such plan as are necessary to achieve such consistency. The Secretary shall approve such plan, as submitted or modified, within thirty days of its submission, except that the Secretary shall disapprove such plan if he determines that

(A) any proposed activity under such plan would result in any condition described in section 1334 (a)(2)(A)(i) of this title, and

(B) such proposed activity cannot be modified to avoid such condition. If the Secretary disapproves a plan under the preceding sentence, he may, subject to section 1334 (a)(2)(B) of this title, cancel such lease and the lessee shall be entitled to compensation in accordance with the regulations prescribed under section 1334 (a)(2)(C)(i) or (ii) of this title. [my emphasis]

And that sets the standard for rejecting an application in 1334 (a)(2)(A)(i) this way:

(i) continued activity pursuant to such lease or permit would probably cause serious harm or damage to life (including fish and other aquatic life), to property, to any mineral (in areas leased or not leased), to the national security or defense, or to the marine, coastal, or human environment;

Now, I would have to do a lot more review of legislative history of the OCSLA to see where that 30-day deadline came from, though so many of the deadlines in the OCSLA are set at 30 days, it might just have been arbitrary (or, it might have been what appeared to be a reasonable deadline to make sure the process kept moving forward–you gotta Drill Baby Drill, dontcha know).

But given Salazar’s and Birnbaum’s statements, the effect appears to be clear. That 30-day deadline appears to ensure that the MMS only looks closely at these exploration plans if there’s a blinking red flag in the plan, and not something trivial like drilling in extremely deep waters and/or innovative drilling plans–the things Whitehouse noted that should have prevented this exploration plan from being exempted from an individual assessment, the things that are causing such acute problems now.

And of course, to actually change this 30-day rubber stamp process, the legislation is going to have to get by industry shills like Lisa Murkowski and James Inhofe. Something to look forward to, I guess.

Oh, one more thing. The Congressman who raised concerns about the Arctic drilling? That’s the normally loathsome Heath Shuler. Just an indication of how a giant disaster can turn even the bluest of dogs into hippie environmentalists.

Sheldon Whitehouse Lists the NEPA Exclusions

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At yesterday’s Environment and Public Works hearing on the BP disaster, Sheldon Whitehouse asked Interior Secretary Ken Salazar and Council on Environmental Quality Chair Helen Sutley why BP had been exempted from doing an Environmental Impact Study on the Macondo drilling site. He listed a number of things that should categorically exclude a project from receiving such an exemption. Two of those almost certainly applied to this well.

  • Areas of high seismic risk or seismicity, relatively untested deep water, or remote areas
  • Utilizing new or unusual technology

In response, Salazar spoke about how much we know about that area.

Senator, there has been significant environmental review, including Environmental Impact Statements that has been conducted with respect to this activity in the Gulf of Mexico. It is an area where we know a lot about the environment, we know a lot about the infrastructure that is there. The question of the categorical exclusion in part relates to the Congressional 30-day requirement that MMS has to approve or disapprove an exploration plan.

You think Salazar knows he’s going to be held responsible for all the exemptions approved since this disaster?

In any case, here’s how much BP knows about the area:

An emergency response plan prepared by BP shows the British energy giant never anticipated an oil spill as large as the one seeping through the Gulf of Mexico.The 582-page document, titled “Regional Oil Spill Response Plan — Gulf of Mexico,” was approved in July by the federal Minerals Management Service (MMS). It offers technical details on how to use chemical dispersants and provides instructions on what to say to the news media, but it does not mention how to react if a deep-water well spews oil uncontrollably.

[snip]

In a section titled “Sensitive Biological & Human-Use Resources,” the plan lists “seals, sea otters and walruses” as animals that could be impacted by a Gulf of Mexico spill — even though no such animals live in the Gulf. [emphasis]

Sure, we know a lot about the environment. We just have some crazy belief that the walruses have decided to vacation on the Gulf of Mexico.

Obama’s Commission

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As we go through another round of hearings on the BP disaster today (at the Energy and Natural Resources Committee this morning, Bernie Sanders asked Ken Salazar whether the risk of a disaster like this was worth the $.03/gallon decrease on the price of gas in 2030; Salazar didn’t really answer), Obama has leaked his intent to appoint a Presidential Committee to investigate the spill.

President Obama plans to create a presidential commission to investigate the BP oil spill, administration officials said Monday.

The commission will be established by an executive order, they said. One official likened the new panel to one ordered by President Jimmy Carter to examine the partial meltdown at the Three Mile Island nuclear plant in 1979.

Thus far, though, the Administration has only leaked its intent, with no details on the mandate of the Commission.

It will be interesting to see whether this Commission falls into that great tradition of whitewash commissions, or whether it will be a real commission. Ken Salazar said that the work of existing investigations (an IG one, and a Coast Guard one, and a science one, I think) would feed into the Presidential Commission. But there are several other efforts to push an investigation. Barbara Boxer has asked DOJ to investigate whether BP lied on its drilling permit application (in its claim that it had a plan to respond to a disaster). And Lois Capps and Ed Markey have sponsored a bill that would mandate a commissions, with subpoena powers and restrictions on conflicts of interest.

As Atrios says:

Because Bob Kerrey, Tom Keane, and Tom Daschle Need Something To Do?

Yes I’m a bit negative about ‘presidential commissions.’ I’ll be more positive if experts, rather than ex-politicians, get to do the job.

Nixon The Obama Campaign Goes to China

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One of the most telling anecdotes in this must-read Edward Luce skewer of the way a small circle of Obama advisors (Rahm, David Axelrod, Valerie Jarrett, and Robert Gibbs) dominates his Administration is this story about his trip to China.

On Mr Obama’s November trip to China, members of the cabinet such as the Nobel prizewinning Stephen Chu, energy secretary, were left cooling their heels while Mr Gibbs, Mr Axelrod and Ms Jarrett were constantly at the president’s side.

The White House complained bitterly about what it saw as unfairly negative media coverage of a trip dubbed Mr Obama’s “G2” visit to China. But, as journalists were keenly aware, none of Mr Obama’s inner circle had any background in China. “We were about 40 vans down in the motorcade and got barely any time with the president,” says a senior official with extensive knowledge of the region. “It was like the Obama campaign was visiting China.”

Coming as it does in an article that compares Obama’s Administration to Nixon’s…

And barring Richard Nixon’s White House, few can think of an administration that has been so dominated by such a small inner circle.

The story really highlights the dangers of such a close-knit group dominating Administration policy: on a visit to China, our relationship with which is one of the most challenging policy issues we face, we’ve got tourists dominating the policy, not experts.

As much as I’m thrilled the story repeats calls to replace Rahm, I think the real story is the suggestion that Obama’s cabinet members are growing tired of being treated as “minions” by Rahm. The story names four by name: Kathleen Sebelius, Ken Salazar, Janet Napolitano, and (above) Steven Chu.

Perhaps the biggest losers are the cabinet members. Kathleen Sebelius, Mr Obama’s health secretary and formerly governor of Kansas, almost never appears on television and has been largely excluded both from devising and selling the healthcare bill. Others such as Ken Salazar, the interior secretary who is a former senator for Colorado, and Janet Napolitano, head of the Department for Homeland Security and former governor of Arizona, have virtually disappeared from view.

Administration insiders say the famously irascible Mr Emanuel treats cabinet principals like minions. “I am not sure the president realises how much he is humiliating some of the big figures he spent so much trouble recruiting into his cabinet,” says the head of a presidential advisory board who visits the Oval Office frequently.

With the suggestion that Sebelius, for example, has been “excluded both from devising and selling the healthcare bill,” are we to understand that all of these cabinet officials are not intimately involved in setting policy? We’ve got Steven Chu, one of the best cabinet picks in the Administration, cooling his heels rather than the climate? And what are Sebelius, Salazar, and Napolitano advising that is not being heard? Is Sebelius growing tired of Rahm fucking up what should be her portfolio (after which, as happened last week, she has to go to Congress and get grilled on it)?

And then, of course, there’s an even more notable cabinet member that goes unmentioned: Hillary Clinton. She showed up prominently in the pictures from China, but she is not mentioned in this story as either one of those (like Joe Biden) who regularly gives Obama counsel but is not part of this inner circle, or one of those prominent cabinet members that Rahm treats like a minion. But the story does note how Arab-Israeli peace took a back seat to Rahm’s failed attempt to pass health care reform. Whether or not Hillary (or, more likely, her inner circle; John Podesta is one of the few named sources for it) is a source for this article, I can imagine how seeing a failed attempt to pass healthcare stall attempts to bring peace to Palestine would rankle Secretary Clinton.

So, yes, this is another story pointing to growing dissatisfaction with Rahm from allies both inside and outside the Administration. But note clearly, it appears to be very high level dissastisfaction.

Don’t Drill Baby, Don’t Drill

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In yet another chapter of Ken Salazar being my temporary favorite cabinet secretary, Salazar and Obama have reversed Bush’s plans to increase offshore drilling.

The Obama administration on Tuesday overturned another Bush-era energy policy, setting aside a draft plan to allow drilling off the Atlantic and Pacific coasts.

"To establish an orderly process that allows us to make wise decisions based on sound information, we need to set aside" the plan "and create our own timeline," Interior Secretary Ken Salazar announced in a statement.

Alleging that the Bush administration "had torpedoed" offshore renewable energy in favor of oil and natural gas, Salazar said he was extending the public comment period by 6 months.

"The additional time we are providing will give states, stakeholders, and affected communities the opportunity to provide input on the future of our offshore areas," he said.

Salazar also ordered Interior Department experts to compile a report on the Outer Continental Shelf’s energy potential — not just oil and gas, but also renewables like wind and wave energy.

"In the biggest area that the Bush administration’s draft OCS plan proposes for oil and gas drilling — the Atlantic seaboard, from Maine to Florida — our data on available resources is very thin, and what little we have is twenty to thirty years old," he said. "We shouldn’t make decisions to sell off taxpayer resources based on old information."

Granted, compared to Eric Holder (who gets to embrace renditions as his first meaningful act) and Tim Geithner (who is stuck with the worst economy in decades), Salazar has it easy. He can stay busy for months just undoing Bush’s harm. 

Still, it’s nice to see one Department improving on what Bush had done.

Salazar’s Successes

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desolation-canyon.jpgI didn’t think I’d be saying this, two weeks into the Obama Administration. But thus far, Ken Salazar has been the high point of the new Administration for me.

Yesterday, we learned via POGO that Salazar is interested in reopening cases against those at the Minerals Management Service who made a mockery of that department. 

According to several sources at the department, Salazar is specifically interested in Gregory Smith and Lucy Denett. They’re both former high-ranking Interior officials; Justice declined to prosecute either one.

Smith is a former director of the controversial royalty-in-kind program at MMS. He took tens of thousands of dollars in consulting fees from a company that wanted to do business with oil and gas companies, and accepted gifts and trips from the industry. Denett ran the Minerals Revenue Management agency, part of MMS, and steered more than $1 million in contracts to a friend.

These are the alleged crimes, recall, referred to DOJ–including alleged sexual assault of a subordinate–that Michael Mukasey didn’t think merited prosecution.

And today we get the news that Salazar is going to cancel Bush’s last minute drilling leases on sensitive land in UT. 

Interior Secretary Ken Salazar is cancelling oil and gas leases on 77 parcels of federal land in Utah, according to sources familiar with the decision, ending a fierce battle over whether to allow energy exploration in the environmentally-sensitive area.

The Bush administration conducted the lease sale in December, but environmental groups went to court to block the winning bids encompassing roughly 110,000 acres near pristine areas such as Nine Mile Canyon, Arches National Park and Dinosaur National Monument.

Just before Bush left office last month, U.S. District Judge Ricardo M. Urbina issued a restraining order on the lease sales, postponing the final transactions until he could hear arguments on the merits of the case.

An Interior spokesman declined to comment on the matter, but several sources familiar with the decision said Salazar planned to announce it later today, adding that he can reject the winning bids without a penalty because the transactions had not become final and the department has the discretion to accept or reject lease bids that prevail at a public auction.

He’s also modifying upcoming leases in Wyoming to account for local concerns about conservation and recreation.

Granted, thus far Salazar has simply set about reversing some of the most egregious abuses of the Bush Administration. Read more →