Testing jurisdiction in a partisan administration
News broke recently that, despite Louisiana Gov. Bobby Jindal’s efforts to protect his coastline from potential oil encroachment resulting from the Deepwater Horizon spill in the Gulf, the federal government has reached out an absurd hand and halted the building of sand berms off the coast of the state. Absurd because the halt is the result of a concern by the federal government that the dredging process might – ahem – negatively affect the environment.
Specifically, federal officials from the Department of the Interior’s Division of Fish, Wildlife and Parks have indicated that the berms are being built in a way that is in violation of the plan that Jindal presented to the Obama administration and that was subsequently approved by the Executive Office. Additionally, Tom Strickland, Interior’s Assistant Secretary for Fish, Wildlife and Parks, has gone on record saying that the dredging is being done in a fragile area that could speed erosion of the Chandeleur Islands, a chain of barrier islands the berms are meant to protect. Strickland, along with his boss in The White House, sees an insurmountable contradiction here.
This kind of twisted logic is patently ridiculous in the face of what Louisiana faces should they fail to adequately protect their shoreline from the oil that continues to leak from the pipe in the Gulf. It’s as if the White House is telling Jindal that the prescription for the problem – which appears to be the best anyone has developed – is too risky given the potential side effects. Is Washington unaware that making a choice between dealing with an immediate negative consequence in order to avoid a larger problem in the future is something unpleasant but all too often a necessity? These decisions are never easy, but Governor Jindal was willing to make the tough decision – and, ironically, had to fight tooth and nail to make it as the Washington bureaucratic two-step was apparently determined to make it as difficult as possible for Jindal to get federal approval. In the end, Jindal got angry and vocal and, perhaps to avoid a public relations nightmare, Washington agreed.
Until now. Jindal, with the recent dictate to halt sand berm construction, is demanding that the federal government get out of the way. But Washington, as they are simultaneously proving by ignoring a recent decision by a federal judge to overturn the moratorium on drilling, appears intent on doing exactly what they want to do regardless of how the public, state leadership, judiciary or private market feels about it.
This kind of behavior, while disturbing, may actually, in the end, be the most revealing weakness this administration has. The limitations of the federal government under the Obama administration – in light of the fact that the White House’s recent behavior would suggest they believe there are none – are becoming a topic of interest and debate. More and more the question arises: Just what power does the federal government constitutionally have?
The jurisdictional limits of the federal government are being actively tested by this administration if recent behavior is an adequate assessment. Jindal had the right to build the berms off his coastline under the guidelines set down under the Submerged Lands Act of 1953. The Oil Pollution Act of 1990, however, gives The Department of the Interior the right to review spill response plans. And herein lies the real insurmountable contradiction. The states are allowed to act but are subject to review by Washington. Perhaps this is a wise formula when the parties involved can be trusted to make decisions that are in the best interest of the citizenry and the country at large.
What happens, however, when the party trusted to review operates from a starting point that — more and more often – appears to be agenda-heavy and biased? The answer: The bureaucratic two-step takes center stage, even during a crisis like the Deepwater Horizon oil spill.
Sarah Lee is an Atlanta native and freelance writer living and working in Washington, D.C.