Holding the Oil Companies Accountable

Higher courts will decide if federal Judge Martin Feldman's ruling overturning the moratorium on offshore drilling was legally sound. But in the meantime, Congress must act to strengthen safety regulations.

In sweeping language, U.S. District Judge Martin Feldman ruled that a “heavy-handed” and “overbearing” Interior Department went too far in freezing new deepwater drilling permits for six months and halting work at 33 deepwater projects.

Judge Feldman concluded that it was arbitrary for Interior to assume that because one rig failed, all companies and rigs doing deepwater drilling pose an imminent danger.

We can all be thankful that Judge Feldman’s standard of “arbitrary” does not govern prudent decisions to recall meat when kids are hospitalized after eating burgers garnished with E. coli. The lack of hard evidence that all meat is contaminated—or that every well is about to erupt—in no way makes such precautionary steps arbitrary.

On page 19 of his ruling, Judge Feldman gave only a sideways glance at the question that sits at the heart of the Deepwater Horizon disaster.

The Court recognizes that the compliance of the thirty-three affected rigs with current government regulations may be irrelevant if the regulations are insufficient or if MMS, the government’s own agent, itself is suspected of being corrupt or incompetent.

That is the understatement of the week. The hard question that Feldman’s ruling hints at is whether spill prevention and response capabilities have kept pace with deepwater production technology.

If the oil companies’ paint-by-numbers spill response plans for the Gulf are any indication, the answer is not comforting – except, perhaps, for globetrotting walruses that might be cavorting in the Gulf 3,000 miles from the nearest ice floe.

Those plans, on which permission to drill was based, have been exposed as ineffective and riddled with misrepresentations. The Secretary of the Interior would be within his rights to go beyond a temporary moratorium and revoke drilling permits outright.

Ideas for corrective legislation are percolating. One such bill, proposed by Senators Scott Brown (R-MA) and Dianne Feinstein (D-CA), would condition issuance of drilling permits on oil companies having peer-reviewed spill response plans in place that are tailored for location and depth.

Whether Feldman’s injunction against the moratorium was legally sound is a matter for higher courts to decide.

Congress need not wait to adopt reforms strengthening management and oversight of offshore oil and gas drilling.