EnscoInjunction 021711
EnscoInjunction 021711
The Court now RESCINDS and VACATES its previous Order1 and GRANTS
Background
Mexico. For the five months that the bans were in place, no
permits were issued for deepwater drilling. But, even after the
1
The January 13, 2011 Order (Dkt. No. 180) is VACATED
only to the extent that it applies to the plaintiff’s motion for
preliminary injunction as to Count IV (Dkt. No. 139).
2
Permitting for shallow water drilling also has
suffered delays.
1
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for a permit to drill on GC 814 using ENSCO 8503, filed April 30,
drill filed July 27, 2010; and two other applications filed by
2
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that its application would move to the end of the queue because of
contrast, the five permits at issue have been pending from four to
been forced to move some of its rigs to other locations around the
for agency decision and, if so, what a reasonable time frame would
resolved the Court’s questions; the Court now RESCINDS and VACATES
3
Discounting the time the two moratoriums were in
place, all five applications have suffered delays of at least four
months.
3
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I.
253 (5th Cir. 2009) (quoting Lake Charles Diesel, Inc. v. Gen.
Motors Corp., 328 F.3d 192, 196 (5th Cir. 2003)); see also PCI
Transport., Inc. v. Ft. Worth & W. R.R. Co., 418 F.3d 535, 545 (5th
the facts and law clearly favor the moving party.” Martinez v.
shows:
Ridgely v. FEMA, 512 F.3d 727, 734 (5th Cir. 2008). “In each case,
4
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Gambell, Alaska, 480 U.S. 531, 542 (1987)). “‘In exercising their
456 U.S. 305, 312 (1982)). Even if all persuasion elements are
II.
A.
1.
see Telecommc’ns Research & Action Ctr. v. FCC, 750 F.2d 70, 79
5
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Club v. Peterson, 228 F.3d 559, 565 (5th Cir. 2000) (“Absent a
the APA,” they are “not always” so. SUWA, 542 U.S. at 61. Section
6
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time.” Forest Guardians v. Babbitt, 174 F.3d 1178, 1190 (10th Cir.
powers.
2.
The Court finds that the Outer Continental Shelf Lands Act
1340(d), the Court holds that once the Secretary exercises that
7
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174 F.3d at 1190. Together, OCSLA and the APA inform the
indefinitely.
under Section 706(1). See SUWA, 542 U.S. at 64. Whether the
B.
1.
17 F.3d 130, 133 (5th Cir. 1994), the U.S. Court of Appeals for the
4
The D.C. Circuit notes that these factors, developed
to determine when a writ of mandamus should issue, are “hardly
ironclad, and sometimes suffer from vagueness” but “nevertheless
provide[] useful guidance in assessing claims of agency delay.”
Id. at 80.
8
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80.
They are:
the “most important.” In re Core Commc’ns, Inc., 531 F.3d 849, 855
scheme may supply content for this rule of reason.” TRAC, 750 F.2d
unreasonable.
9
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73 (D.C. Cir. 1991), the D.C. Circuit held that even though the
generic drug division, which forced some employees out and diverted
others from their usual work. Although the court of appeals found
the head of the queue simply moves all others back one space and
produces no net gain.” Id. at 75. But, the appeals court warned,
had the plaintiff “shown that the FDA had singled it out for
10
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intervention. Id.
Later, the U.S. Courts of Appeals for the Tenth Circuit was
2.
permits in general. But that does not mean this Court is powerless
to act. See TRAC, 750 F.2d at 80. Beyond dispute is that before
With this in mind, and in light of the TRAC insights, the Court
5
The Tenth Circuit recognized it “must consider
resource availability,” but it concluded that “the agency defense
of unavailable resources must be reserved as a defense against
contempt if an injunction issues.” Id. at 1189.
11
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concludes that the time delays at issue here are unreasonable such
“of the speed with which [Congress] expects the agency to proceed.”
TRAC, 750 F.2d at 80. Why? OCSLA structures four distinct stages
Interior v. Cal., 464 U.S. 312, 337 (1984). The third and fourth
12
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blessing to a time frame for action no longer than thirty days; the
former two-week time processing period preceding the oil spill also
confirms this.
regulations are no longer new; and the threat of rigs leaving the
13
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1191. OCSLA’s text infers that delays beyond thirty days are
development.
the government should act within thirty days on the five permits
14
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moratorium.6
III.
Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th
Cir. 1985); see Wis. Gas Co. v. F.E.R.C., 758 F.2d 669, 674 (D.C.
6
Courts in circumstances more remote than in this case
have, with approval, imported time-sensitive mandates into statutes
that were silent as to time. See In re Am. Rivers & Idaho Rivers
United, 372 F.3d 413, 418-20 (D.C. Cir. 2004) (finding the Federal
Energy Regulatory Commission lacked the discretion not to act on a
petition and requiring that it act within forty-five days).
15
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Inc. v. CDL Mktg., Inc., 878 F.2d 806, 810 n.1 (5th Cir. 1989)
(quoting Miss. Power & Light Co. v. United Gas Pipe Line Co., 760
F.2d 618, 630 n.12 (5th Cir. 1985)). The rights involved here are
will follow.
is granted and that the injunction will not disserve the public
disaster draws near, any reason that would have justified delays
credibility.”).
preliminary injunction.
IV.
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is GRANTED.
____________________________
MARTIN L.C. FELDMAN
UNITED STATES DISTRICT JUDGE
17