Hornbeck Offshore Services, L.L.C. v. Salazar et al

Filing 184

RESPONSE/MEMORANDUM in Opposition filed by Florida Wildlife Federation, Sierra Club re 167 MOTION to Enforce Judgment (Preliminary Injunction Order). (Babich, Adam) Modified on 9/29/2010 (caa, ).

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA HORNBECK OFFSHORE SERVICES, LLC, et al., Plaintiffs, v. SALAZAR, et al., Defendants. and DEFENDERS OF WILDLIFE, et al., Defendants-Intervenors. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

2:10-cv-01663-MLCF-JCW SECTION F JUDGE FELDMAN MAGISTRATE WILKINSON

DEFENDANT-INTERVENORS SIERRA CLUB AND FLORIDA WILDLIFE FEDERATION'S OPPOSITION TO PLAINTIFFS' RENEWED MOTION TO ENFORCE PRELIMINARY INJUNCTION ORDER ______________________________________________________________________________ Defendant-Intervenors Sierra Club and Florida Wildlife Federation respectfully submit this Opposition to Plaintiffs' Renewed Motion to Enforce Preliminary Injunction Order (No. 167). As grounds for their Opposition, Sierra Club and Florida Wildlife Federation state: 1. The bottom-line question of whether there should be a moratorium on deep-water

drilling in the Gulf of Mexico is one of policy: How cautious should the government be in the face of a catastrophe of uncertain causes and impact and a limited ability to gain control of a
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blow out? Reasonable people can differ about the answer. This Court provided one point of view in an analogy: "Are all airplanes a danger because one was?" An equally valid analogy might be: "Did not caution dictate interruptions in the space program when the Apollo 1 burned and later, when the Challenger space shuttle exploded?" There is no definitive "correct" answer because neither a precautionary bias nor a bias in favor of continued exploration is per se arbitrary; the question is one of philosophy, i.e., policy. This is the type of issue, therefore, that is left to our elected officials and their appointed administrators to resolve, so long as they follow the law and provide reasonable explanations of their decisions. To the extent, therefore, that the Hornbeck Plaintiffs claim that this Court found the moratorium to be inherently arbitrary and capricious, the Plaintiffs mischaracterize this Court's ruling and ignore the proper role of judicial review in the administrative law system. The Court issued its Preliminary Injunction based on the specific findings and record that were before it. 2. The government's July 12, 2010, Moratorium must stand or fall on its own merits,

that is: 1) whether DOI acted within its authority to issue the order under 43 U.S.C. § 1334(a) and 30 C.F.R. § 250.172(b); 2) whether DOI articulated a rational connection between the facts found and the choice made; and 3) whether DOI's decision was otherwise "arbitrary, capricious, an abuse of discretion, or not otherwise not in accordance with law," for example by failing to consider relevant factors. 5 U.S.C. § 706(2)(A). Judged on this basis, the July 12, 2010 moratorium is lawful, even though some people strenuously disagree with the policy decisions behind it. 3. In the original, May 28, 2010 Moratorium, DOI provided what was arguably a

short and conclusory explanation of its decision. This Court was left to decide which side of the following dichotomy the case fell: did the agency's decision lack a "rational connection between

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facts found and choices made" or was the agency's decision one of "less than ideal clarity [in which] the agency's path [could] be reasonably discerned." Hornbeck Offshore Services, L.L.C. v. Salazar, 696 F. Supp. 2d 627, 634-35 (E.D. La. 2010) (internal quotation marks and citations omitted). Given the agency's arguably short, conclusory findings in the May 28, 2010 moratorium, the Court raised questions that it deemed the agency to have failed to answer and found: "On the record now before the Court, the defendants have failed to cogently reflect the decision to issue a blanket, generic, indeed punitive, moratorium with the facts developed during the thirty-day review." 696 F. Supp. 2d at 638 (emphasis added). In other words, all pertinent aspects of the Court's decision were tied to the agency's failure to provide a more thorough explanation of its action in terms of findings based on the record. 4. Whether the July 12, 2010, moratorium is the functional equivalent to the May 28,

2010 moratorium is irrelevant to the issues before this Court. Agencies routinely re-issue decisions on remand that are essentially the same in substance as decisions that failed to pass judicial muster the first time around. The question is whether the Agency has now provided a rational explanation, supported by the record. Similarly, arguments about whether, before the agency reached a final decision on July 12, 2010, agency personnel expressed an intention or expectation that the agency would issue a second moratorium are also irrelevant to the issues before this Court. Likewise, arguments about how many pages or facts in the record were available to the agency on or before May 28, 2010--as opposed to July 12, 2010--are irrelevant. Because DOI has now provided a non-arbitrary and thorough explanation of its decision to impose a moratorium, the agency has cured the (probable1) legal violation identified by this

The Court found "a likelihood of successfully showing that the Administration acted arbitrarily and capriciously." 696 F. Supp. 2d at 638. The Court has not issued a final decision on the merits.
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Court in the Preliminary Injunction. This is not "circumventing" the Court's Preliminary Injunction; it is correcting the problem that the Court identified. 5. Characterizations of agency motivations as "punitive" or "litigation posturing" are

inappropriate when, as here, the agency has provided a lawful explanation for its action in its findings. The agency is entitled to a presumption of regularity. See Estate of Landers v. Leavitt, 545 F.3d 98, 113 (2d Cir. 2008) (holding "[i]n the ordinary case, we must uphold or set aside the agency's action on the grounds that the agency has articulated" and "we are unwilling to ascribe such nefarious motives to agency action as a general matter") (citing U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001) ("[A] presumption of regularity attaches to the actions of Government agencies")). CONCLUSION For all the foregoing reasons, this Court should DENY the Hornbeck Plaintiffs' Renewed Motion to Enforce. Respectfully submitted this 28th day of September, 2010, / s/ Adam Babich __________________________________ Adam Babich, La. Bar No. 27177 Tulane Environmental Law Clinic 6329 Freret Street New Orleans, LA 70118-6321 Phone: [phone]; direct dial 862-8800 Fax: [phone] COUNSEL FOR SIERRA CLUB /s/ Alisa A. Coe _____________________________________ Alisa A. Coe, La. Bar No. 27999 David G. Guest, Admitted pro hac vice Fla. Bar No. 0267228 Monica K. Reimer, Admitted pro hac vice Fla. Bar No. 0090069 Earthjustice P.O. Box 1329 Tallahassee, FL 32302-1329 COUNSEL FOR SIERRA CLUB and FLORIDA WILDLIFE FEDERATION

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CERTIFICATE OF SERVICE I hereby certify that on September 28, 2010, I caused as copy of the foregoing to be served through the Court's CM/ECF system to all parties. s/ Adam Babich

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