Fifth Circuit asked to block permit for Texas gas export terminal

NEW ORLEANS (CN) — An attorney for the Sierra Club told a Fifth Circuit panel Wednesday that the U.S. Army Corps of Engineers should not have approved a permit for a liquified natural gas facility in Texas that allows dumping into wetlands.

Thomas Gosselin said the Corps has also not been straightforward about how long the Rio Grande Valley wetlands will continue to be affected.

 “The Army Corps failed to chart the impacts and timeline and would have us believe there is a three -month impact, which is simply not the timeline for any impacts,” the attorney said.

He added, "This will clear the wetland to the ground. Those impacts – which are certainly impacts because clearing the vegetation means it can’t be used as a habitat for wildlife anymore – are not quantified.”

Gosselin said the best-case scenario would be that the vegetation might come back in a year. The worst-case scenario would be “several years of uninterrupted impacts.”

U.S. Circuit Judge Kurt Engelhardt, an appointee of Donald Trump, asked which other impacts should be considered.

“How much should we weigh other scenarios not even mentioned here?” Engelhardt asked. “Like the impacts from tropical storms and hurricanes?”

“I would say a great deal,” Gosselin replied.

The Sierra Club along with fishermen and other environmentalists filed a petition for review with the Fifth Circuit last fall after the Corps issued a permit for the proposed Rio Grande LNG export terminal and a related Rio Bravo Pipeline project in southern Texas.

The groups argue the permit “falls short of legal requirements to avoid and compensate for impacts to wetlands.”

The Rio Grande LNG project, helmed by Houston-based NextDecade Corp., would export natural gas from the port of Brownsville to overseas markets. The Rio Bravo pipeline is owned by Calgary-based Enbridge Inc. and would supply the terminal with natural gas from Agua Dulce, Texas.

The Sierra Club, Save RGV From LNG and Shrimpers and Fishermen of the RGV claim in their petition to the New Orleans-based Fifth Circuit that the Corps' approval for the project violated the Clean Water Act because it will result in the destruction of hundreds of acres of wetlands.

They claim the destruction would come not only from clearing the wetlands to put pipe in the ground, but also because the terminal plans to use the wetlands to store fill and other materials.

Arguing on behalf of the Corps before the Fifth Circuit panel Wednesday, Justice Department attorney Rebecca Jaffe said the agency did its due diligence and concluded the permit was the “least environmentally damaging practical alternative.”

The agency needed to consider cost and logistics, Jaffe said, among other factors.

“The Corps decided it is not reasonably practicable to shift the terminal” in order to avoid building on wetlands, she said.

Jaffe said that even if the proposed terminal was shifted, only five acres of wetlands would be spared – out of hundreds – and moving the terminal site would result in safety issues, in addition to millions of dollars in extra costs.

During arguments from attorney Jeremy Charles Marwell, who appeared on behalf of intervenor Rio Bravo Pipeline Company, Senior U.S. Circuit Judge Carolyn Dineen King, a Jimmy Carter appointee, asked for clarification on the purpose of the LNG terminal.

“So, the benefit of this for the U.S. is we have this pipeline and we’re going to sell this LNG abroad, and that’s income?” King asked.

“Yes,” Marwell said.

During his rebuttal, Gosselin said Jaffe’s arguments proved the Corps could do more to avoid environmental impacts but was choosing not to.

“The task of the Army Corps of Engineers is to only allow the least harmful alternative,” the Sierra Club attorney said, adding that the agency cannot allow a project simply because it is working with the industry to find a less expensive option.

“The Corps just conceded that it would be capable of protecting more wetlands,” but decided against it because it would cost too much time and money, Gosselin said. “This is not a NEPA [National Environmental Protection Act] case –this is not a case where the Army Corps simply needs to give a hard look at something. This is a case where the Corps needs to choose to harm as few wetlands as possible.”

King and Engelhardt were joined on the panel by U.S. Circuit Judge Kyle Duncan, a Trump appointee. The judges did not indicate how or when they will decide on the matter.

As permitted, the pipeline system would impact 122.7 acres of wetlands. The terminal would have impacts to 149.7 acres of wetlands and special aquatic sites and 156.8 acres of open water.

Neither the Corps nor NextDecade immediately replied to requests for comment.

Michael Barnes, a spokesperson for Enbridge, said in an email that though the company doesn’t typically discuss active litigation, “we believe we’ve provided valuable information that will allow the court to make an informed decision on the project.”

In a statement, Gosselin said the environmental groups' arguments are straightforward.

"The Army Corps of Engineers wrongly reissued Rio Grande LNG a 404 permit because it clearly violates the Clean Water Act. Rio Grande LNG will destroy hundreds of acres of wetlands and pollute some of the only remaining pristine coastline left in the State," he said. "On top of that, this project has faced years and years of local opposition. The Fishers and Shrimpers of RGV fear that LNG projects like Rio Grande LNG will irreparably damage the coastal waters in South Texas and destroy their way of life and their source of income."

He added, "The Army Corps of Engineers needs to finally recognize that damage that Rio Grande LNG will cause is not trivial, it will have tangible and significant impacts on people's lives and the environment and revoke the facility's 404 permit."

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