Ruth Marcus | Who Is the Activist Judge Here?

Washington – The confirmation hearings for Supreme Court nominee Elena Kagan are about to get under way — and with them the inevitable denunciations of activist liberal judges substituting their policy preferences for those of elected officials.

Spare me.

If you’re worried about judicial activism, take a look at the Ronald Reagan-appointed federal judge in New Orleans who just lifted the Obama administration’s moratorium on deepwater drilling.

To get to this result, Judge Martin Feldman had to leap over two steep legal hurdles. First, he had to find that the decision to impose a six-month moratorium on such drilling was “arbitrary and capricious.” Second, he had to conclude that allowing the moratorium to remain in place would impose “irreparable harm” on the companies challenging it.

The “arbitrary and capricious” standard is supposed to protect against judicial activism. It means that government agencies are entitled to broad deference if they can show a reasonable basis for their action.

As the Supreme Court has explained, and Feldman quoted in his ruling, “an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”

So, you might ask, in the context of the Gulf disaster and the moratorium: Has Judge Feldman seen pictures of those pelicans?

In overturning the moratorium, the judge said he could not find adequate justification for its “immense scope.” For one thing, he noted, it prohibited drilling at depths of 500 feet or more — not 1,000 feet, as some experts consulted by the agency had recommended. (The Interior Department, by the way, didn’t do itself any favors by making it seem as if the experts supported the 500-foot moratorium.) For another, the government did not show any risk of safety problems on the 33 other deepwater rigs already drilling in the Gulf of Mexico.

As Feldman put it, “Are all airplanes a danger because one was?” Well, no, but if one model of airplane has demonstrated safety problems, the government can ground similar ones to check for problems. And if there is no way to manage the results of a crash — if you can’t even get ambulances to the scene — then you might want to err on the side of caution.

Which gets to the second legal question: irreparable harm, one of the requirements for lifting the moratorium while the case proceeds. Feldman sees the harm, understandably enough, largely in economic terms. “An invalid agency decision to suspend drilling of wells in depths of over 500 feet simply cannot justify the immeasurable effect on the plaintiffs, the local economy, the Gulf region, and the critical present-day aspect of the availability of domestic energy in this country.”

And those pelicans?

The Gulf spill epitomizes irreparable harm. Interior Secretary Ken Salazar’s order imposing the moratorium finds that continued drilling “poses an unacceptable threat of serious and irreparable harm to wildlife and the marine, coastal, and human environment.”

It could be that the moratorium is too broad, or that it did not adequately take into account the economic consequences of suspending drilling. But why is that for Judge Feldman to decide rather than Secretary Salazar? And where is the conservative outcry over policymaking from the bench?

(c) 2010, Washington Post Writers Group