President Obama’s ban on deep-water oil drilling in the wake of the Deepwater Horizon Gulf oil disaster pits important ethical values against each other: fairness vs. responsibility. On both sides of the equation is prudence. New Orleans federal judge Martin Feldman over-ruled the ban and issued an injunction against it, saying in effect that there was no contest: the ban isn’t fair, prudent, or responsible.
The Obama Administration’s ethical argument supporting the ban goes something like this: “We thought that the technology and regulations were in place to make deep water drilling safe for the environment, at least to an extent that would preclude catastrophic oil leaks. Since that belief has been shattered by what occurred in the Gulf, the only responsible course is to determine whether the disaster was an anomaly in an otherwise sound system, or, in the worse case, proof that the assumed safety measures are in fact inadequate, and need to be repaired before further deep-water drilling occurs.”
The ethical brief opposing the argument is that the ban will lose jobs, deplete energy resources and further hurt the economy of the Gulf at a time when all of these have already been harmed by the BP spill. An unprecedented occurrence does not justify imposing widespread harm on innocent parties to avoid a risk that may or may not be real. The ban is unfair, because it does not make any attempt to balance the interests involved, and it is irresponsible because it recklessly imposes significant harm without any attempt to mitigate.
This criticism of the ban on ethical grounds doesn’t even include the accusations being leveled from the Right, which accuse the Obama Administration of cynically using the Gulf disaster to inhibit oil production as part of a long-term plan to push the country toward climate change legislation and raise the price of gasoline, which would build public support for the development of alternative energy sources. “I’m telling you: Obama doesn’t care about the lost jobs!” screamed radio ranter Mark Levin. If this were in fact true, the Administration would be engaged in a particularly brutal act of utilitarianism, causing short-term injury to large numbers of individual citizens in order to accomplish a “greater good” in the long-term. Such a pure “ends justifies the means” strategy would have to be nearly certain to work to have any valid ethical defenses, and perhaps not even then. Being sure they are right wouldn’t be enough to make such a plan ethical. The Administration would have to convince everyone, including those who would lose their jobs, that they are right. This is all speculation, however, and based more on over-heated distrust of President Obama by ideologues than it is on facts.
The question is really whether safety and protecting the environment is an absolute, justifying any consequences to other stakeholders in the decision. Environmentalists obviously support the ban, because to them the environment is an absolute. That’s how advocacy groups are. A President, however, cannot ethically refuse to engage in balancing interests.
This is where Judge Feldman entered the fray, in his ruling on the suit challenging the ban brought by off-shore oil service firms. Because he was to determine whether the ban was “arbitrary” and an abuse of discretion, he was making an ethics call as well as a legal one. The question was whether the ban was reasonable and fair.
The judge didn’t think it was either. In his order, Feldman wrote, “The Court is unable to divine or fathom a relationship between the [Interior Department’s] findings and the immense scope of the moratorium.” he said. In other words, there was no reasonable balancing of the speculative risks being addressed and the certain damage the moratorium would cause. Hence the ban was unfair, and irresponsible.
The administration’s drilling suspension, he wrote, “does not seem to be fact-specific and refuses to take into measure the safety records of those others in the Gulf…the blanket moratorium, with no parameters, seems to assume that because one rig failed and although no one yet fully knows why, all companies and rigs drilling new wells over 500 feet also universally present an imminent danger.” He ruled that the suspension was arbitrary in length. Why six months and not four? Or eight? When millions of dollars in local commerce, jobs and livelihoods hang in the balance, it is unfair and irresponsible to just pick a length of time out of a hat.
Judge Feldman issued the injunction lifting the ban while stating that the Interior Department had failed to demonstrate that the Deepwater Horizon rig blowout by itself showed that there was imminent danger on all deep-water drilling rigs in the Gulf. Since the “blanket, generic, indeed punitive, moratorium” would do serious and inevitable harm to the industry, the regions, the local economies, individuals and their families, stopping the drilling was unfair, wrong and an abuse of power.
The judge made an ethics call: fairness and prudence outbalanced speculative safety considerations, and, in his view, environmental safety was not an absolute, justifying eliminating all risk.
We have to remember that there is no “right” answer to this conflict. When ethical values compete, different individuals will weigh them differently. Judge Feldman’s reasoning is ethically sound, but he could have just as easily and ethically concluded that the ban was reasonable, saying, for example, that the only reason deep water drilling had been permitted at all was because regulators believed oil industry representations that they knew how to minimize the damage when and if a an oil spill occurred. Since the BP incident proved that this was not true, it was not unreasonable for the Department of the Interior to shut down drilling until it was confident that the next spill, whenever it occurred, could be contained. The six month limit, by this reasoning, was proof that the Administration was trying to minimize that financial harm to others, because an indefinite ban could be justified.
Feldman’s ruling didn’t stop the ethics controversy, because anti-drilling forces immediately challenged his ethics. Environmental groups and others flatly declared that the judge had a pro-drilling bias, because his 2008 financial disclosure form showed that he had invested in companies involved in offshore oil and gas exploration. If they were right, then Feldman had a clear conflict of interest, because he would be one of the individuals who could be financially harmed by the moratorium. Under such circumstances, his judgment would be suspect even if his own holdings never entered into his reasoning at all. It would have been unethical for him to decide the case, because it would appear improper.
His deciding the case was not unethical however, because Feldman had sold those investments. Then, just hours before hearing the drilling ban case, Feldman sold his remaining oil investments, Exxon stock. This was an interesting thing to do, because it was both ethical and practical. Ethically, it removed a conflict of interest: he no longer had a financial interest in the case. Practically, he unloaded stock that he knew his own ruling might devalue, if he upheld the ban. I think his conduct is powerful evidence that he was committed to making a fair and unbiased ruling.
At this point, only the critics of the decision who continue to impugn Judge Feldman’s integrity (like the New York Times editorial staff, which is either unaware that Feldman divested himself of drilling and oil investments before ruling, or chooses to keep its readers ignorant of that inconvenient fact) are behaving unethically. So far, the ethics audit of this difficult situation shows this:
The deep-water drilling ban: ethically defensible.
The argument against the ban: ethically defensible.
Judge Feldman’s ruling declaring the ban unethical, and thus an abuse of power: also ethically defensible.