I never would have thought I'd say this, but Ken Salazar is a freaking genius.
When Judge Feldman granted a preliminary injunction against the federal government for ordering a six-month moratorium on deepwater drilling yesterday, he called the drilling hiatus "arbitrary and capricious" and its basis "factually incorrect." The administration vowed to immediately appeal.
But Salazar's Interior Department went a step further, drafting a new moratorium order, which will lay out in detail how the Deepwater Horizon well, authorized under the same rules as the other 33 deep wells in the Gulf, is an illustration of the flaws in those rules, and thus prima facie evidence of the danger those wells pose.
"Damn," I thought. "It's what the Florida Supremes should have done."
You'll recall that, in 2000, the U.S. Supreme Court ordered a stay to the vote recount in Florida, finding that the Florida Supreme Court ruling allowing for continuing recount of votes in contested counties after Katharine Harris declared the vote certified treated the votes in those counties differently than those of the rest of the state. The US Supremes' decision said, in essence, "We say that you're violating the 14th Amendment by continuing to count those counties. Explain how you're not."
The Florida Supremes countered by ordering a statewide recount only of undervotes, which allowed the majority of the US court to say, "You didn't address our objection. Bush wins."
By not only appealing Judge Feldman's ruling, but by issuing a new moratorium order that addresses Feldman's claim that the moratorium isn't based in fact, I believe Salazar has not only checked the judge's first argument, but done it in a very clever way. If the plaintiffs want to challenge the second order, they are going to have to sue in Feldman's court and the reasoning the judge has given for siding with the plaintiffs won't wash against the second moratorium, which you can bet your boots is going to have more factual reasons to believe that deep drilling, as currently permitted and practiced in the Gulf, is demonstrably dangerous.
While the appeal of the injunction has more or less continued the pause in deep drilling, the second moratorium order guts Feldman's own arguments, and will have to be challenged in his own court.
IANALJROCAPOSOI (I am not a lawyer, judge, regulator, oil company, appeals panel or Secretary of the Interior), but it seems to me Salazar and his staff have tied up those rigs with a big, pretty bow.
You are free to appeal my judgement.