Lugar de Noticias Haynes and Boone

Fifth Circuit Nixes Court-Ordered Deadline to Act on Drilling Permits
Wolf McGavran

On March 15, the Fifth Circuit temporarily stayed a court-imposed deadline that would have required federal off-shore regulators to act on certain drilling permits in the Gulf of Mexico. The Fifth Circuit’s order came just four days before the March 19 deadline imposed by Judge Martin Feldman of the U.S. District Court for the Eastern District of Louisiana.

The Fifth Circuit’s order does not explain its reasons for staying the deadline. In requesting the stay, the administration argued that the permits at issue had yet to meet permitting requirements and that mandating immediate action would disrupt the efficient review of permit applications. Furthermore, forcing the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE), the agency tasked with processing off-shore drilling permits, to take action on the handful of drilling permits at issue in the case would come at the expense of other permits that were closer to approval.

The permits at issue had been pending for four to nine months. Prior to the Deepwater Horizon oil spill, such permits were processed in approximately two weeks. In his February 17 order requiring action on the drilling permits, Judge Feldman found that, while some delays might be justified, “[d]elays of four months and more in the permitting process . . . are unreasonable, unacceptable, and unjustified by the evidence before the Court.” Judge Feldman also noted that, although there was currently no drilling moratorium in effect, “it appears that the government has considered no applications for any activities falling within the scope of the moratorium.” On February 28, BOEMRE issued its first deepwater drilling permit since the Deepwater Horizon oil spill.

Judge Feldman previously drew attention when, three months after the explosions on the Deepwater Horizon, he temporarily enjoined the Interior Department from enforcing a six-month drilling moratorium.

As published in the American Bar Association Section of Litigation, Energy Litigation News & Developments on March 18, 2011.