By MICHAEL KUNZELMAN
BATON ROUGE, La. (AP) — A company may resume construction of a crude oil pipeline in a Louisiana swamp, a project that has been on hold for nearly three weeks, an appeals court ruled Thursday.
A lower-court judge had suspended construction of the Bayou Bridge pipeline in the Atchafayala Basin, but a divided three-judge panel from the 5th U.S. Circuit Court of Appeals agreed to lift that order.
It remains to be seen, however, how much work Bayou Bridge Pipeline LLC will be able to complete before rising water in the basin forces another work stoppage, possibly lasting for months. Construction in the basin began in January.
On Feb. 23, U.S. District Judge Shelly Dick sided with environmental groups and issued a preliminary injunction stopping all Bayou Bridge pipeline construction work in the basin until a lawsuit the groups had filed against the project is resolved. Sierra Club and other environmental groups sued the U.S. Army Corps of Engineers in January, saying it violated the Clean Water Act and other environmental laws when it approved a permit for the project.
The appeals court panel’s majority opinion said the company is likely to succeed on the merits of its claim that Dick abused her discretion in granting the injunction.
Dick should have allowed the case to proceed “on the merits” and sought additional information about the “deficiencies” she identified in her ruling, the opinion added.
Judge W. Eugene Davis of the 5th Circuit dissented, saying he agreed with Dick that an environmental assessment of the project by the Corps did not comply with the National Environmental Policy Act.
A spokeswoman for Energy Transfer Partners, the pipeline company’s majority owner, said it was pleased with the ruling.
“We will begin mobilizing for construction activities as soon as possible and will do so in full compliance with all permit conditions,” the Dallas-based company’s spokeswoman, Alexis Daniel, said in a statement.
Earthjustice attorney Jan Hasselman said the latest ruling is a setback but “not the end of this fight.”
“We will keep fighting in court to protect the Atchafalaya Basin and demand that oil and gas companies such as Energy Transfer Partners finally be held accountable for decades of carelessness, incompetence and greed,” Hasselman said in an email.
Dick concluded the project’s irreversible environmental damage outweighed the economic harm that a delay brought to the company. The judge said the project potentially threatens the hydrology of the basin and “poses the threat of destruction of already diminishing wetlands.” She also agreed with environmental groups that centuries-old “legacy” trees can’t be replaced once they’re cut down.
During a 5th Circuit hearing Tuesday, company attorney Miguel Estrada said “time is of the essence” because water levels in the basin are rising due to the rainy season. A permit issued by the Corps requires the company to stop construction if river levels reach a certain height. Estrada said the company could resume work for weeks before water levels reach that threshold and possibly remain above it for several months.
Environmental groups’ lawyers said water levels already had reached a level that made it unlawful for the company to resume pipeline construction in the basin.
After Tuesday’s hearing, however, Hasselman said the company can still do “a whole lot of damage” if the company resumes clearing a path for the pipeline in most of the basin.
The basin accounts for approximately 25 miles (35 kilometers) of the pipeline’s roughly 160-mile-long (260-kilometer) path from Lake Charles to St. James Parish.
Dick’s order only applied to the basin and didn’t prevent the company from working elsewhere along the pipeline’s route.
The basin is the nation’s largest river swamp and includes roughly 880,000 acres (356,000 hectares) of forested wetlands, according to the groups’ lawsuit.
Bayou Bridge Pipeline LLC is a joint venture of Energy Transfer Partners and Phillips 66. Energy Transfer Partners built the Dakota Access pipeline, a project that sparked a string of violent clashes between protesters and police in North Dakota in 2016 and 2017. The Bayou Bridge pipeline is the last link in a pipeline network connecting the Bakken oil fields in North Dakota with Louisiana refineries and export terminals.