Government 'irreparable harm' argument fails to gain traction before majority Republican-appointed appellate court...

Ernest A. Canning Byon 7/9/2010, 3:19pm PT

Guest blogged by Ernest A. Canning

A three judge panel of the heavily-Republican 5th Circuit Court of Appeal in New Orleans rejected the Department of Interior's request for an emergency stay of Judge Martin Feldman's June 22, 2010 preliminary injunction [PDF], which prevents enforcement of the Department of Interior's six month moratorium on exploratory drilling on only 33 "of the approximately 3,600 structures in the Gulf dedicated to offshore oil exploration and production."

The panel's two Reagan appointees, Judge Jerry E. Smith, joined by Judge W.Eugene Davis, ruled that the government had failed to demonstrate that it would be irreparably harmed if a decision on whether to vacate Judge Feldman's injunction wasdeferred until after the appeal was heard sometime around the end of August or early September. Judge James L. Dennis, a Clinton appointee, dissented, noting that he did not believe Secretary of Interior Ken Salazar had abused his discretion in ordering a moratorium, which, per the government's motion is limited to those drilling operations that apply "the same technologies employed by Transocean's Deepwater Horizon...only to waters over 500 feet deep..." Since, under the Administrative Procedures Act, a court cannot overturn an agency decision absent an abuse of discretion, Judge Dennis appears to have concluded that Judge Feldman erred in issuing the preliminary injunction.

Judge Dennis did have a question, however, about the six month length of the moratorium.

While yesterday's ruling does not mean that the panel will ultimately rule