A group of environmental organizations mounted a two-step challenge to a federal judge’s order that allows continued drilling of deepwater oil wells in the Gulf of Mexico, site of a massive oil spill from a blown-out well.  In a series of filings before the holiday weekend, the three organizations simultaneously sought the District Judge’s removal from the case, and a pledge by him to withdraw his order as soon as that can be done.  The documents were filed in District Court in New Orleans even as the Fifth Circuit Court prepared to hold a hearing Thursday on the controversy.

The Defenders of Wildlife, the Center for Biological Diversity, and the Natural Resources Defense Council argued in their recusal motion that District Judge Martin L.C. Feldman must disqualify himself from any further part in the dispute because of his investments in the oil industry and in related companies.  The motion is here, and a legal memorandum supporting it is here.  Exhibits with the motion detailing the judge’s investments are available on the docket of the case (Hornbeck Offshore v. Salazar, 10-1663, Eastern District Louisiana.)

In separate documents, the organizations filed a “motion for relief” asking Judge Feldman to formally declare that, because of the disqualification move, he would withdraw his June 22 order nullifying the Obama Administration’s six-month moratorium on deepwater oil drilling in the Gulf.  The motion is here, and a legal memo supporting it is here.  If he does that now, even while the case is pending on the Administration’s appeal to the Fifth Circuit, the case could be returned to him to nullify the order, the motion said.  Judge Feldman does not have jurisdiction while the case is on appeal.

If Feldman took both steps, it would put a temporary end to the hotly contested issue of whether deepwater drilling should end until an investigation is completed into the causes of the April 20 explosion of the Deepwater Horizon well.  The Administration imposed a six-month moratoriuim, which it said would affect only 33 wells, but the judge found that the moratorium had not been justified.  That is the issue now pending in the Circuit Court.

The judge’s investments in the oil and related industries have been a topic of public conversation since they were revealed after he had issued the injunction against the moratorium.  The environmental groups, which have intervened in the case and have filed their own appeal to the Fifth Circuit, asked the judge — on the day after he issues his injunction — to release his most recent financial disclosure form. The judge did so.  That led the groups to pursue his recusal.  The motion argued that Feldman “has a financial interest in the subject matter in controversy, and that interest could be substantially affected by the outcome of this case.” And, it added, his ownership interests in oil and gas exploration “could cause [his] impartiality reasonably to be questioned.”

The judge’s latest financial statement, the groups noted, listed stock investments in Exxon Mobil Corp. and Allis Chalmers Corp., as well as bond holdings in other companies — all, it said, engaged in oil and gas drilling or related work in the Gulf. The judge, in a publicly released letter, said he had sold his Exxon stock on June 22 — just before he began a hearing that led to the issuance of the injunction.  Exxon Mobil, the groups said, operates one of the deepwater rigs directly covered by the government’s moratorium.  The fact that he sold it before the June 22 hearing, according to the legal memorandum, did not remove the need for him to recuse because, it argued, he had had the matter before him for weeks before that.  The challenge to the moratorium was filed June 7.

In the intervening groups’ plea for withdrawal of the judge’s injunction, they argued that Feldman “has authority to indicate” that he would vacate the order, once the case is returned to his Court by the Fifth Circuit.  If the judge does agree to take that step, the groups said, they could then ask the Fifth Circuit to return the case so that action could be carried out.

As of now, the briefing will go forward in the Circuit Court, with a reply brief due from the Obama Administration on Tuesday.  A one-hour hearing is set for Thursday afternoon.

Posted in Cases in the Pipeline