Friday, July 9, 2010

Injunction Against Deepwater Drilling Moratorium Affirmed: Judicial Financial Investments Cause Continuing Questions

In a very brief opinion, a panel of the Fifth Circuit Court of Appeals affirmed District Judge Martin Feldman's preliminary injunction of Secretary of the Interior Salazar's six month moratorium on deep water drilling issued May 28, 2010, after a report on the BP Deepwater Horizon explosion and oil "spill."

One of the three judges on the panel disagreed. Judge James Dennis wrote (in full):

I would grant the Secretary’s motion to stay the district court’s preliminary injunction pending appeal, and to this extent, I respectfully dissent from the majority’s order. I concur, however, in reserving the Secretary’s right to apply for emergency relief and ordering an expedited appeal and briefing. I will assign reasons for my dissenting view at a later date.


The Fifth Circuit's opinion did not to quell the questions being raised about the impartiality of the judges in the Fifth Circuit.   Known colloquially as the "oil and gas circuit," the Fifth Circuit has been comprised of only three states - - - Texas, Louisiana and Mississippi - - - since the early 1980s when the Eleventh Circuit was created from the "former Fifth Circuit" that also included Florida, Alabama and Georgia.  Given the composition of the federal judiciary, it is not surprising that many judges in the Fifth Circuit (including the district judges of the Circuit)  have financial and pre-judicial legal practice connections to the oil and gas industries.   This lack of uniqueness might be fatal to a Caperton v. Massey due process argument.

A new report from Alliance for Justice, provocatively entitled Judicial Gusher discusses the ties of individual judges to the energy industry, including a two page chart with specific financial information.  Issued before the Fifth Circuit panel's decision, the report specifically discusses the three judges on the panel.  Interestingly,  Judge Dennis' financial holdings in energy corporations are described as "substantial" and not unlike the other two judges.  


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