Lately in Lawyerin’

Have you booked your room yet for the big state convention down in Corpus this weekend? I think a bunch of those shrimpers from Louisiana and Mi’Sippi have already made their way down the coast to more hydrous waters and taken up residence at the Omni. Both Omnis. That place wouldn’t even accept my offer to pay 65% of their advertised nightly rate. And that was with Captain Kirk doing the talking and all the while striking his hilarious kung fu poses.
So I don’t wanna hear about all the ecological disaster, decades of environmental destruction, devastated communities and lost ways of life, blablabla. Because this whole BP mess is now putting a kink in my weekend party plan.
Speaking of, I just heard about a piece o’ lawyerin’ that ties into all that. (The BP mess – not my weekend party plan….which, by the way, explicitly prohibits any lawyerin’, and will hopefully not necessitate the solicitation of any lawyerin’ from anybody else, either.) It seems that some in the petroleum industry – y’all might know it as the Awl Bidness – have had their oxen gored by the administration’s moratorium on deepwater offshore drilling, and so have sued to have the moratorium lifted.
A federal district judge has now sided with them and granted a temporary injunction. In other words, the judge put a moratorium on the administration’s moratorium. Kind of like when you’re playing Strip Uno and two of your friends keep playing ‘Reverse’ cards back and forth against each other. Only with billions in petroleum revenue and the future of the Gulf of Mexico at stake rather than just the prospect of having to show your junk to people too wasted to remember the next day that you’re a grow-er and not a show-er.
According to the court, the administration took a study limited to what went wrong at Deepwater Horizon, and used it to conclude that all deepwater drilling everywhere posed an imminent danger. (SIDEBAR: I smell some evidentiary mischaracterization here and maybe some confusion about the correct legal standard of review, but let’s just go with it for purposes of this post). The court then scoffs at the Obama administration for wildly overreacting to a single isolated incident (in stark contrast to, say, the cautious and measured approach the Bush administration took in response to 9/11) and concludes the moratorium is “arbitrary and capricious.”
This is a legally significant finding, because as anyone with a modicum of legal training knows, the Constitution don’t allow no arbitrary and capricious laws up in here. Which is why we never have any. Honest we don’t.
For those of you not familiar with the legal euphemism “arbitrary and capricious,” it refers to when the government makes up a rule without really thinking it through first. Like if someone tried to blow up a plane with a shoebomb and the government reacted by deciding that we should, all of us, have to take off our shoes AND our belts at the airport EVERY time we fly ANYWHERE. Or that we should only carry liquids in quantities of 3 ounces or less because of the obvious safety threshold associated with that volume.
Then again, that kind of arbitrary and capricious thinking would only compromise civil liberties and not the Awl Bidness, so maybe courts would tolerate it. Priorities, you understand.

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