Abstract
Following the Deepwater Horizon oil spill of April 20, 2010, oil companies filed several suits against the Department of the Interior (DOI or Interior) for various dimensions of alleged government misconduct surrounding attempts to regulate private offshore drilling in the Gulf of Mexico. Hornbeck Offshore Services, LLC v. Salazar is one of several such cases challenging the DOI’s response, which included a May 2010 moratorium halting offshore drilling in the Gulf of Mexico after the “catastrophic” Deepwater Horizon oil spill. Several companies engaged in offshore drilling challenged DOI’s moratorium in federal district court on June 7, 2010. Judge Feldman of the Eastern District of Louisiana issued a preliminary injunction on June 22, 2010 staying the effects of the moratorium, finding that the public interest, the degree of harm to the local economy, and the availability of domestic energy warranted a preliminary injunction allowing the thirty-three oil companies, and those similarly situated, to resume offshore drilling. DOI appealed the court’s injunction against its moratorium. While that appeal was pending, Secretary of the Interior Kenneth Salazar testified at a Senate subcommittee hearing that the moratorium remained in effect. Pursuant to the literal terms of the injunction, DOI repealed the initial moratorium but replaced it with a substantially identical one, despite Judge Feldman’s order staying enforcement of the initial moratorium. In August 2012, the district court found DOI in contempt after the agency refused to materially comply with the stay of the moratorium, requiring DOI to pay more than $500,000 in attorneys’ fees for the extended litigation stemming from DOI’s behavior.
Protracted litigation followed, culminating in hearings for oral argument before the Fifth Circuit on August 8, 2012. On November 27, 2012, a majority of the Fifth Circuit panel reversed the district court’s contempt finding, and in doing so criticized the injunction for failing to clearly set out that its purpose was to prevent the resumption of operations until further court order. Setting aside the machinations for reviewing a finding of civil contempt, what makes the circumstances of Hornbeck so unique is the narrowness by which the Fifth Circuit is willing to construe its own judicial power in contrast with how much latitude it gives to the Executive Branch and its related agencies to continue pursuing controversial policies.
The term “nonacquiescence” describes the gap between an adverse court ruling and an agency policy that allows for continued agency activity inconsistent with that ruling. Only a federal statute or an opinion from the Supreme Court can close this gap. The limited scope by which the judiciary can forcibly align agency actions with judicial decisions has remained constant, despite a relative explosion in agency involvement in national citizen-state interaction. Over the last sixty years, agencies have been the primary movers in deciding several key constitutional issues and their applicability to large-scale government programs. Beginning in the 1980s, courts began taking active measures to curb intracircuit nonacquiescence. Hornbeck departs substantially from the historical backdrop of nonacquiescence; administrative agencies have traditionally abided by district court injunctions, but in Hornbeck DOI chose to pursue its own policy over the stay in enforcement ordered by the Eastern District Court of Louisiana.
If this expanded application of nonacquiescence gains broader application in federal courts, two consequences will result. The first is a kind of moral hazard: agencies will craft bolder, more aggressive policies if armed with the knowledge that those policies can still be applied despite adverse court decisions. Second, and relatedly, by adopting such a narrow conception of its own reviewing power vis-à-vis agency behavior, the federal judiciary will cede an indeterminable amount of its own oversight authority with equally indeterminable consequences for future plaintiffs.
The Supreme Court has yet to decide whether intracircuit agency nonacquiescence is constitutional, and until the Court addresses that question, clashes between the federal judiciary and agency administrators are likely to continue. Commentators are divided as to how likely it is that the Supreme Court will take up the constitutional arguments. Proponents of intracircuit nonacquiescence argue that non-constitutional means can address the concerns regarding the practice, and opponents argue that the lack of a definitive response from the Court on the constitutional arguments that would address how to resolve the tension between the executive and judiciary branches makes the conflict intractable.
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The current state of nonacquiescence jurisprudence allows agencies to limit the application of court decisions to minimize the impact on administrative policy, as long as the measures implementing that policy are within the statutory bounds of that agency’s purview. As the circumstances of Hornbeck underscore, until the Supreme Court addresses whether such nonacquiescence is constitutional and, if so, what the boundaries are, there remains an impermissibly large gap in available remedies for similarly situated plaintiffs affected by agency policy in the same jurisdiction. Part I of this Article discusses the traditional bases for nonacquiescence, and finds that the circumstances of Hornbeck fall well outside the narrow policy reasons for which courts have allowed nonacquiescence in the past. Part II of this Article surveys the relevant nonacquiescence case law that has developed since the 1980s, and analyzes the major themes these cases contribute to the issues underlying the parties’ dispute in Hornbeck. Furthermore, Part II explains that although agencies have at times refused to apply circuit court decisions within the jurisdiction of that circuit court, appellate judges have harshly criticized this type of noncompliance as an impermissible substitute for judicial review.
Part III then describes the circumstances of the Hornbeck litigation, focusing on DOI’s use of two substantively identical moratoria to circumvent the district court’s injunction. Part III also asserts that, on a practical level, the continued expansion of nonacquiescence implicated by the Fifth Circuit’s decision in Hornbeck would improperly expand the doctrine of nonacquiescence and remove a key piece of the ability of the judiciary to check agency behavior.
Finally, Part IV recommends a legislative response or timely Supreme Court review, and concludes that either would be an effective answer to the unbalanced state of power relations between the judiciary and federal administrative agencies at present. As it stands, and as the Fifth Circuit’s recent decision in Hornbeck underscores and indeed amplifies, agencies are afforded too much power to continue pursuing policy objectives without meaningful judicial review. This Article concludes that definitive action should preempt a broader application of the Fifth Circuit’s overly narrow construction of its own judicial power to avoid creating safety for agency administrators to craft overly aggressive policies, as well as to prevent judicial review of said policies from being so lax as to make potential plaintiffs’ remedies (e.g. specific performance) effectively unenforceable.