NEW ORLEANS (CN) – Construction of a pipeline through delicate wetlands in Louisiana that was halted last month over the possibility of irreversible harm to the environment can resume, a divided Fifth Circuit panel ruled Thursday.
U.S. District Judge Shelly Dick issued an order last month granting environmentalists’ motion to suspend construction of the Bayou Bridge Pipeline through the Atchafalaya Basin – the largest remaining wetland in North America –until she decides on the merits of a case in which the Sierra Club and others challenged the U.S. Army Corps of Engineers’ decision not to perform a full environmental assessment to make sure no irreversible damage will be caused in the swamp, including long-term damage to crawfish harvest areas.
But on Thursday, the majority of a three-judge panel of the Fifth Circuit granted the pipeline company’s motion to lift that order.
Atchafalaya Basinkeeper, the Louisiana Crawfish Producers Association (West), Gulf Restoration Network, Waterkeeper Alliance and Sierra Club – represented by lawyers from Earthjustice – filed a lawsuit in January seeking to halt construction of the 162-mile Bayou Bridge Pipeline.
The environmental groups argued Bayou Bridge Pipeline LLC, had been issued a permit to begin construction in violation of the Clean Water Act, which requires a full environmental assessment.
Judge Dick’s order last month blocked construction in the basin on the grounds that it threatened ancient cypress and tupelo trees in the path of the pipeline that serve as critical habitat for hundreds of species of wildlife.
Dick also found the Army Corps’ decision to require pipeline owner, Energy Transfer Partners, to offset any environmental harm by enriching a wooded area 55 miles away was in violation of mitigation provisions.
Miguel Estrada, a lawyer for Bayou Bridge Pipeline LLC and its majority owner, Energy Transfer Partners, argued during a Fifth Circuit hearing Tuesday that the company is losing nearly half a million dollars a day because of Judge Dick halting construction through the swamp. Dick wrote in her ruling that the pipeline company had not substantiated its claims for how much money would be lost.
Two of three Fifth Circuit judges disagreed with Dick’s order and issued a stay against it. U.S. Circuit Judges Edith Brown Clement and Priscilla Owen – both of whom, along with Estrada, were among 11 judges nominated to federal appeals courts in 2001 by then-President George W. Bush – made up the majority of the panel.
Judge Clement disagreed fully with the injunction, writing that Judge Dick “should have allowed the case to proceed on the merits and sought additional briefing from the Corps.”
Judge Owen wrote a concurring opinion, agreeing to stay the injunction as long as the underlying challenge is heard quickly.
“I…am persuaded that BBP has demonstrated a likelihood of success on the merits on appeal and that a stay of the preliminary injunction is warranted, provided that this court resolves this appeal on an expedited basis so that Atchafalaya Basinkeeper’s challenges to the permit are not mooted by the completion of construction or irreparable alterations to the Atchafalaya Basin,” she wrote.
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