Here Comes the Judge

By Paul Greenberg (Archive) · Tuesday, June 29, 2010

As if Louisiana and the rest of the Gulf coast hadn't been hurt enough by a succession of disasters natural and man-made, the Obama administration has chosen to pile on by arbitrarily banning deep-water drilling for six months. At least.

What an exciting prospect: More unemployment, more idled capacity, more workers without work, more families on the dole, and, of course, less energy for an economy that, conventional Greenism to the contrary, must still depend on that remarkably efficient and convenient fuel called petroleum.

But it turns out there is still some law and even reason left in the chaotic aftermath of BP's disastrous explosion-cum-oil spill that's now going Gulf-wide. For here comes the judge. His name is the Hon. Martin Feldman and he's had the simple candor to call an arbitrary decision arbitrary.

Can you believe it -- a ruling by a federal court that takes reality into account? While recognizing that the Deepwater Horizon spill is "an unprecedented, sad, ugly and inhuman disaster," His Honor refused to condone piling another one on top of it via federal fiat.

Reason has long been the last resort of law. This judge has made it the first, much to the consternation of the administration's lawheads.

To quote the judge, "If some drilling equipment parts are flawed, is it rational to say all are? Are all airplanes a danger because one was? All oil tankers like the Exxon Valdez? All trains? All mines? That sort of thinking seems heavy-handed, and rather overbearing."

Rather overbearing? There's no rather about it. The administration has responded to the oil spill by drawing a line in the water at 500 feet. Regardless of all the wells operating safely above -- or below -- that level. That isn't reason, it's ... well, arbitrary.

With one edict it put a total of 33 exploratory oil wells out of commission. And threatens to shut down a good part of the whole petroleum industry.

Washington's diktat brings to mind the doomsters' reaction after the Hindenburg burst into flames that fateful night in 1937 with horrific, and well-publicized, results. It was a time when manned flight was still far from routine -- and some said the disaster just showed that man has no business flying. It was just too dangerous. Like drilling for oil below 500 feet.

Judge Feldman also called the administration's decision "capricious." Maybe not. It seems a calculated enough decision -- calculated to appeal to the public's panic, and the general demand that Washington not just sit there but Do Something, preferably something dramatic. Even if it's the wrong thing. Even if it adds to the oil spill's already catastrophic impact on the economy and people of the Gulf states.

It's a grandstand play that will allow the president to stack the commission that's supposed to investigate the feasibility of drilling for oil in the Gulf. Now he can fill it up with enviro-ideologues who never wanted to drill there in the first place. None are likely to recuse themselves from an appointment; even if they have prejudged the issue; this may be their big chance to throw a monkey wrench into the whole idea of drilling offshore.

Bobby Jindal, Louisiana's governor, has a better idea; he usually does when it comes to tackling this spreading oil spill. He's been ahead of Washington on this problem -- way ahead -- since Deepwater Horizon went down in a sea of spreading of spreading oil. He would conduct a top-to-bottom inspection of these oilrigs over the next 30 days, double-checking all the equipment, putting all personnel through a refresher course, and putting any additional precautions in place. Then assign a full-time inspector to each rig around the clock. All of which makes more sense than shutting down a whole industry because of one accident, however disastrous.

The disaster on Three-Mile Island in 1979 derailed the expansion of the country's nuclear industry for a generation, adding one disaster atop another. Are we now going to do the same to offshore drilling in the Gulf? And maybe beyond?

Judge Feldman's decision revives hope in the federal courts. Let's hope this rare sighting in the law -- of reason, perspective and proportion -- sets a new trend. But the tendency to substitute ideology for reason, and reaction for judgment, won't be easy to buck. The judge's decision will surely be appealed. There is a whole level of officialdom in this country that finds reason ... well, unreasonable.

Judge Feldman, in his zeal for reason, turns out to be quite a rhetorician. But in the end, what should matter most in this case is whether the Obama administration followed the law -- whether it respected its own rules and regulations or acted arbitrarily.

The administration pretty much answered that question when, without hearings or investigation or any further ado, it picked a nice round number -- 500 feet -- and simply imposed it, arbitrarily, on the oil industry. And on all those who depend on it.

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