Gulf Drilling Moratorium Injunction Appeal

UPDATE: Stay denied, with leave to come back to seek emergency relief if anyone starts drilling.  Based on the news summary, anyway.  A safe, sensible decision that upholds the standard test for a stay under decidedly non-standard conditions.

I just listened to the oral argument in the U.S. Court of Appeals for the 5th Circuit regarding the government’s motion to stay the injunction blocking interior Secretary Ken Salazar’s Gulf drilling moratorium.  It was interesting. 

I believe only two judges asked a substantial number of questions, and we appear to have an initial split on the panel. 

One judge appears to think that substantial injury caused by the stay to the party opposing the stay ends the inquiry.  So stay denied. 

Another has argued that the Property Clause of the U.S. Constitution gives the federal government plenary power over federal territory.  So stay granted.  Based on very quick look at a couple of cases I vaguely remember from law school, I don’t think the Property Clause is particularly relevant (sure, the Feds have the power to regulate; but the question is whether Interior followed the rules when he exercised his delegated power). 

I think it’s the Property Clause judge (can’t be sure from the recording), but one of them is spending a lot of his time discussing the merits of the injunction and the moratorium rather than the standard for issuing a stay of the injunction pending appeal.  And by discussing, I mean he at least appears to think the moratorium was very well justified by the massive impact of the spill and the risk of continued deepwater drilling before we figure out what caused it.

Final note — the merits decision will be accelerated.  One judge noted that the merits argument might be as early as the week of August 30.

Oh, and for any law students and young lawyers out there, when a judge asks you a question, ANSWER THE DAMN QUESTION!  Then, and only then, explain why, regardless of the answer, it supports your position or doesn’t matter.  One of the plaintiffs’ lawyers pissed off a judge by ducking a question repeatedly.  Don’t do that.  It annoys the judge, makes it look like you don’t have a good answer, and bogs down your argument.

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Published in: on July 8, 2010 at 4:50 pm  Leave a Comment  

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