One Key Issue In Deepwater Drilling Battle Could Be Resolved Soon

24th Jun 2010 15:16

By Brent Kendall Of DOW JONES NEWSWIRES WASHINGTON (Dow Jones)--Predicting the length of the legal fight over the Obama administration's six-month moratorium on deepwater drilling is a difficult endeavor thanks to several variables, but the most pressing issue could be resolved soon. The most immediate matter for the courts to decide is whether to temporarily keep the moratorium in place while legal proceedings continue. That question could be resolved in a matter of days or weeks. U.S. District Court Judge Martin Feldman in New Orleans issued an injunction Tuesday that bars the administration from enforcing the deepwater drilling ban. The government on Wednesday night asked Feldman to temporarily stay his injunction while it pursues an appeal with the New Orleans-based 5th U.S. Circuit Court of Appeals. Feldman could rule on that motion any day. If he declines to stay the enforcement of his own injunction, the government can file an emergency motion with the 5th Circuit asking them to keep the moratorium in place until the legal fight over Feldman's injunction is resolved. An official in the 5th Circuit clerk's office said the court has emergency three-judge panels on standby to handle emergency motions. The losing party on that question at the 5th Circuit could then ask the Supreme Court to weigh in on an emergency basis. Justice Antonin Scalia is the designated justice who handles emergency motions that originate from the 5th Circuit. Paul D. Clement, an appellate attorney with the King & Spalding law firm and a former U.S. solicitor general, said the federal government often can obtain a temporary stay much more readily than private parties. The underlying issue--whether Judge Feldman was justified in issuing an injunction that lifts the moratorium--could take longer to sort out. The parties likely would ask the 5th Circuit to consider the appeal on an expedited basis, which means the normal length of time for making written legal arguments, usually about three months, could be cut in half. That briefing schedule could be shortened even further if the parties and the court agreed to do so. Normal civil cases in the 5th Circuit that are not handled on an expedited basis usually take between nine and 15 months to resolve. Clement said predicting a timeline for the case is difficult, but added, "you certainly should not underestimate the courts' ability to move with incredible dispatch if the circumstances warrant." "The courts routinely move incredibly swiftly in capital cases, and also can move very quickly in cases of irreparable injury," Clement said. "What would take months in a normal case, can take weeks or even days." The other major issue to consider: Political developments could supersede the current court fight. If the Obama administration issues a revised drilling moratorium or a new set of rules governing deepwater activity, that could trigger a whole new legal dispute. The trial judge would likely get first crack at weighing in on any revised deepwater regulations. -By Brent Kendall, Dow Jones Newswires; 202-862-9222; [email protected] (END) Dow Jones Newswires June 24, 2010 10:16 ET (14:16 GMT)