The Gulf Deepwater Drilling Moratorium Litigation: While Merits Still Pending, Already Significant Practical Effect?

• Date: 01 November 2010

11-2010 NEWS & ANALYSIS 40 ELR 11137

The Gulf Deepwater Drilling

Moratorium Litigation: While

Merits Still Pending, Already

Signif‌icant Practical Effect?

by Cynthia A. Drew

Cynthia A. Drew, Ph.D., J.D., is Associate Professor of Law, University of Miami School of Law.

“[N]early one-third of the Gulf of Mexico has been closed to

commercial and recreational  shing.”

—U.S. District Judge Martin Feldm an (June 22, 2010)

On April 20, 2010, the Deepwater Horizon well operated by

BP exploded, killing 11 and injuring many more workers,

as it began spewing “endless gushes of crude oil” into the

Gulf of Mexico 50 miles south of the Louisiana coastline at

a depth of 5,000 feet.1 Besides these immediate “senseless”

worker deaths and injuries, “horrible losses” were sustained

by the families and loved ones of the dead and injured crew,

the broken pipe on the oor of the sea gushed crude for nearly

three months afterwards, and t he oil muck “spread across

thousands of square miles and persists in damaging sensitive

coastlines, wildlife, and the intertwined local economies.”2

In response to these “all-too-familiar tragic facts,”3 on

May 28, 2010, the U.S. Depart ment of the Interior (DOI)

Secretary Ken Salazar imposed a six-month moratorium

on Gulf deepwater drilling. Oil dril ling ser vices companies

(Hornbeck) operating in the Gulf promptly led suit, seek-

ing a preliminar y injunction forbidding the moratorium

from taking eect. On June 22, 2010, the federal district

court granted plaintis’ motion. Shortly afterwards, the U.S.

Court of Appeals for the Fifth Circuit refused to reinstate

the moratorium. On July 12, 2010, Secretary Salazar issued a

1. Hornbeck Oshore Services, LLC v. Salazar, 696 F. Supp. 2d 627, 630 n.2, 40

ELR 20173 (E.D. La. June 22, 2010).

2. Id.

3. Id.

new moratorium. e government then moved, on mootness

grounds, in the district court to dismiss plaintis’ suit based

on the rst moratorium and in the U.S. Court of Appeals for

the Fifth Circuit to vacate the district court’s preliminar y

injunction. On September 1, 2010, the district cour t ruled

that plaintis’ case challenging the Secretar y’s rst mora-

torium was not moot. On September 29, 2010, t he Fifth

Circuit ruled that the government’s appeal of the prelimi-

nary injunction was moot because the injunction was legally

dead, and this exped ited chain of swiftly moving events was

still in proc ess.

I. Background of Case

By late April 2010, President Barack Obama had ordered the

Secretary of the Interior to review and report on the Deepwa-

ter Horizon blowout within 30 days—specic ally, on “what,

if any, additional precautions and technologies should be

required to improve the safety of oil and gas exploration and

production operations on the outer continental shelf.”4 After

submitting a May 27, 2010, report on these matters to the

president,5 the next day, Secretary Salazar imposed the chal-

lenged six-month moratorium on oshore drilling operations

of new and currently permitted deepwater wells in waters

deeper tha n 500 feet. On June 7, 2010, several plainti oil

services companies sued for declaratory and injunctive relief,

alleging, inter alia, that the Secretary had acted contrary to

law in imposing the moratorium. Plaintis then moved for a

preliminary injunction to prohibit the DOI from enforcing

its six-month moratorium on Gulf deepwater drilling.6

4. Memorandum from Ken Salazar, Sec’y of the Interior, to Michael Bromwich,

Director, Bureau of Ocean Energy Management, Regulation, and Enforce-

ment (July 12, 2010).

5. U.S. DOI, I S M  E D  

O C S (2010).

6. Louisiana Gov. Bobby Jindal led an amicus brief on the motion for prelimi-

nary injunction. e Florida Wildlife Federation, the Center for Biological

Diversity, the Natural Resources Defense Council, the Sierra Club, and the

Defenders of Wildlife intervened as defendants.

Author’s Note: e author practiced environmental law at Jenner and

Block, Chicago, and the U.S. Department of Justice’s Environment

and Natural Resources Division, Washington, D.C.; served with the

U.S. Army Corps of Engineers and South Florida Water Management

District; is a Florida civil circuit court mediator and co-editor of

L-S E R: F C S F

 U S. She thanks reference librarian Pam Lucken and

law student Corey Watson for research assistance.

Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.