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In Contempt, or Not In Contempt? That is the Question.

By Robyn Hagan Cain on November 28, 2012 | Last updated on March 21, 2019

Back in 2010, when the Deepwater Horizon platform was gushing barrels of oil into the Gulf of Mexico — and brilliant plans like "let's throw garbage at the leak" failed to stymie the flow — the Obama administration decided that offshore drilling might not be all that it was cracked up to be.

Ten days after the Deepwater explosion, President Obama ordered Secretary of the Interior Ken Salazar to review the event and report on additional precautions and technologies to “improve the safety of oil and gas exploration and production operations."

Less than a month later, the Secretary directed a six-month moratorium on permits for new wells being drilled using floating rigs and an immediate halt to drilling operations on the 33 permitted wells that were currently being drilled using floating rigs in the Gulf of Mexico.

U.S. District Judge Martin Feldman enjoined the Interior moratorium in June 2010. The Department responded by issuing a nearly-identical moratorium, The Associated Press reports.

To Judge Feldman, the Secretary's "dismissive conduct" warranted a civil contempt finding against the Interior Department. This week, however, the Fifth Circuit Court of Appeals reversed that finding because Judge Feldman hadn't explicitly prohibited a new moratorium -- let alone one that was nearly identical to the first -- in his injunction, according to the AP.

Judge Leslie Southwick, writing for the majority, explained, "A more broadly worded injunction that explicitly prohibited the end-run taken by Interior would have set up issues more clearly supportive of contempt."

Judge Southwick went on to say that the Interior Department was carrying out a policy decision by the president, and that "The national importance of this case weakens, not strengthens, the propriety of the court's contempt finding."

What the what? Isn't this the same circuit that gave Eric Holder a homework assignment on judicial review?

First, the Fifth Circuit seems way too cool about the Department's decision to defy the district court by issuing a replacement directive. Sure, Interior proceeded to create and enforce a new drilling moratorium instead of the enjoined moratorium, but the two were nearly identical.

Second, the Executive Branch has been known to make bad decisions in times of crisis. The courts are supposed to provide a check on bad decisions.

Judge Jennifer Walker Elrod made the same point in her dissent, writing, "The court's power to enforce its orders must remain intact, even in the midst of the most critical emergencies of the state. Simply put, the Judiciary may be the least dangerous branch, but it is not entirely toothless."

Offshore drilling views aside, how do you feel about this ruling?

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