In his latest column, John Dean, formerly of the Nixon administration, who has since mended his ways, took a long look at the recent decision to shut down the moratorium on offshore drilling. It ain't pretty.
In the end, it appears as if Judge Feldman has significant conflicts of interest, and should, but probably won't, face disciplinary action.
Dean examines two aspects of Feldman's ruling: First, whether there are ethical standards that were violated, and then second, the quality of the ruling itself.
Judge Feldman's Financial Disclosure Report for Calendar Year 2008 (the last statement he filed) shows a man of considerable wealth. Although the statement suggests few large holdings (most under $15,000; some under $100,000), the numbers add up, no doubt to many millions of dollars. Financial disclosure statements are less than revealing, and Feldman's is no exception: It tells the reader little, but it does disclose his remarkable number of oil and gas holdings in the Gulf of Mexico, where his recent ruling will have its greatest impact.
I did look at the disclosure form, and it did not look like a huge amount of money to me, but I'm not an expert in these types of documents, so I will defer to Dean on his total net worth. Either way, I'm not sure that it makes a big difference.
At the end of the article, John Dean has an update to Feldman's disclosure.
Shortly after posting this column, the Associated Press reported Judge Feldman had filed his 2009 financial disclosure statement on June 6, 2010. In addition, on June 23, 2010, the judge sent a letter to amend his disclosure statement indicating that "at the opening of the stock market on June 22, 2010 [and] prior to the opening of a Court hearing on the Oil Spill Moratorium case," he had sold his recently acquired shares of Exxon. Clearly, Judge Feldman understands the canons, and he is playing it as close to the line as possible, which itself may violate the canons.
Judge Feldman was assigned this case that was filed on June 7th at least by Friday, June 18th, when he began issuing orders to the parties to expedite the case, if not earlier. Yet he waited until Tuesday, June 22nd to sell his Exxon. Did he wait to sell until he had decided before the hearing that he was going to rule in favor of the oil companies, making his Exxon ownership a conspicuous conflict of interest? More importantly, why did he not remove all the potential conflict investments from his portfolio? For example, he still own shares which appear they could be affected by his ruling, namely Ocean Energy and El Paso Corporation (see above), along with more recently acquired interests in Energy Transfer Equity and Crosstex (which have Louisiana operations)?
What's more, he still has numerous oil and gas stocks in his portfolio. So all that he did was hold to the minimum letter of the law, and perhaps not even that much, in order to avoid obvious ethical violations, and he only did so at the last minute, just prior to ruling on the moratorium.
Also in this column, Dean looks at the quality of the ruling itself:
Judge Feldman's Order And Reasons do not appear to have been in any way carefully considered. To the contrary, his opinion is snarky, less than skillfully crafted, and remarkably political -- not to mention, filled with troubling gaps. It reads like a draft prepared by a bright law clerk who had just returned from a meeting of the Federalist Society.
...
During the court proceedings before Judge Feldman, the government pointed out that Secretary Salazar's decision to follow the recommendations of the experts calling for a brief moratorium was, as the judge notes in his opinion, "influenced by a concern that the government's resources, stretched thin by the oil spill, could not cope with another blowout were one to occur." Yet Judge Feldman's response to this rather grim reality was to characterize it -- in a footnote, no less -- as a "disturbing admission by this Administration."
We don't know how to stop it, neither does the company that created the problem in the first place, yet the government is not allowed to study what happened and try to find a solution.
Dean goes on to point out that the government was belittled throughout the hearing. For a judge with an apparently good reputation, it seems as though he had no interest in deciding any other way from the time he was assigned the case two weeks earlier.
What is probably most troubling in all of this is not so much the investments in oil and gas stocks. Instead it appears to be a federal judge that imposes his own agenda in his rulings, without any broader concerns. If the district court does not overturn this ruling, then there is little chance that the Supreme Court will, either. While it is unlikely that another such failure will occur, it is also not entirely unreasonable to think that it might. We already have a much smaller leak happening closer to the coast of Louisiana, and at least one BP employee has said he is concerned about another rig that may have exactly the same type of drilling practices as Deepwater Horizon.