Fifth Circuit Allows Construction of Pipeline in Wetlands

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.

Owen added that the pipeline company “has also made a showing that halting ongoing construction of the pipeline is disruptive.”

Senior U.S. Circuit Judge W. Eugene Davis, a nominee of Ronald Reagan, dissented from the majority, finding that the Army Corps’ environmental assessment of the project “did not adequately explain how the proposed compensatory mitigation plan would reduce the impacts of the pipeline construction below a significant level.”

“In addition, even if we expedite the appeal of the preliminary injunction, Bayou Bridge’s work in the basin will continue for another four to eight weeks and may very well moot out the appeal,” Davis said.

Davis, who was an attorney in private practice that represented oil and gas companies before becoming a judge, also noted that the lower court found the Army Corps “did not explain how the bottomland hardwood credits Bayou Bridge Pipeline, LLC, proposed to purchase would mitigate the loss of function and services of the bald-cypress/tupelo swamp that Bayou Bridge planned to destroy.”

“The majority recognizes this deficiency but concludes that the Corps can provide a ready explanation for the substitution of out-of-kind bottomland hardwoods as compensation for destroying bald-cypress/tupelo swamp in the Atchafalaya Basin. This ready explanation was not provided to the district court or to us,” he wrote in the dissent. “That should be the end of the inquiry for this motions panel.”

Davis went on to say that when out-of-kind mitigation measures are chosen, the Army Corps has to “in the very least explain and document its basis for doing so in the administrative record. That is, the Corps must explain how the out-of-kind mitigation measures replace the ‘lost functions and services’ of the bald-cypress/tupelo swamp.”

Jan Hasselman of Earthjustice said after Tuesday’s hearing that the pipeline company could probably “do a whole lot of damage” to the basin if construction was allowed to begin again. She expressed disappointment in Thursday’s decision.

“Today’s ruling is a setback but it’s not the end of this fight,” Hasselman said in an email Thursday. “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.”

The Bayou Bridge Pipeline project, if completed, will connect the controversial Dakota Access Pipeline to bring crude oil from North Dakota to refineries and export terminals in St. James Parish, Louisiana, forming the southern leg of the Bakken Pipeline.

“The Bayou Bridge pipeline would pose an unacceptable risk to the wetlands, water, and communities along its route, and should never be built,” Julie Rosenzweig, director of Sierra Club Delta Chapter, said in an email. “Allowing a company with as egregious a track record as Energy Transfer Partners to move forward with construction in spite of ongoing legal challenges is unconscionable. We will continue making our case against this dirty, dangerous pipeline.”

Energy Transfer Partners, which owns the Dakota Access Pipeline and is a joint owner in the proposed Bayou Bridge Pipeline, said in a statement that it is pleased with the Fifth Circuit’s stay.

“We will begin mobilizing for construction activities as soon as possible, and will do so in full compliance with all permit conditions,” the company said.

Construction of the pipeline began in January. Judge Dick’s order last month only halted construction in the Atchafalaya Basin, allowing the project to continue elsewhere.

“In the first 11 weeks of 2018, ETP has been hit with 36 violations and $12.8 million in proposed fines by federal and state regulators for their repeated failures to comply with regulations and laws designed to prevent spills, explosions, fires, loss of life and to ensure the public safety of their oil and gas operations and pipeline construction operations in multiple states,” Donna Lisenby of Waterkeeper Alliance said in an email.

“We will continue fighting to hold this reckless company accountable for its weekly acts of water pollution and harm to communities.”

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