Fifth Circuit Gives OK to Louisiana Pipeline

In this Friday, April 27, 2018 photo, trees in a cutback sit between an existing pipeline channel, left, and a new pipeline channel, on Bayou Sorrel in the Atchafalaya River Basin in Louisiana.  (AP Photo/Gerald Herbert)

(CN) – The U.S. Army Corps of Engineers properly approved construction of a pipeline through the largest river swamp in North America – authorizing the destruction of acres of old-growth trees – a divided Fifth Circuit ruled Friday.

The 162-mile Bayou Bridge Pipeline will run from Lake Charles, Louisiana, to a terminal about 60 miles west of New Orleans, with a maximum capacity of 480,000 barrels of crude oil per day.

It will connect the controversial Dakota Access Pipeline to bring crude from North Dakota to refineries and export terminals on the Gulf Coast, forming the southern leg of the Bakken Pipeline.

The company installing the pipeline, Bayou Bridge LLC, is a joint venture between Energy Transfer Partners and Phillips 66. Company officials said they expect to complete the pipeline in October.

The Atchafalaya Basinkeeper, Louisiana Crawfish Producers Association–West, Gulf Restoration Civil Action Network, Waterkeeper Alliance and the Sierra Club sued in January to halt pipeline construction.

The environmentalists claimed the Army Corps of Engineers violated the Clean Water Act by not requiring an environmental impact study and by finding the project would have no significant impact on the environment.

In February, U.S. District Judge Shelly Dick in the Middle District of Louisiana sided with the challengers. She issued an injunction that blocked construction of the pipeline in the Atchafalaya Basin to stop Bayou Bridge from destroying 142 acres of cypress-tupelo swamp wetlands that provide habitat for hundreds of wildlife species.

Cypress trees can grow for thousands of years up to 150 feet; tupelo trees can survive over 650 years.

The 800,000-acre basin, part of the Mississippi River Delta, is home to more than 100 fish species. As part of a flyway for migratory birds, it provides wintering grounds for ducks and geese. According to the Atchafalaya National Heritage Area, an estimated 22 million pounds of crawfish are harvested from the basin each year.

Judge Dick agreed that the Army Corps had not adequately explained its decision to let Bayou Bridge buy seedling hardwood trees—gum, oak and bald cypress—grown at a mitigation bank 55 miles north of the construction zone to offset the loss of old-growth in the construction zone.

Bayou Bridge appealed to the Fifth Circuit in New Orleans.

A Fifth Circuit panel allowed construction to proceed in March after Bayou Bridge complained in a hearing that the disruption was costing it nearly half a million dollars a day.

Working on an expedited schedule in light of the ongoing construction, another Fifth Circuit panel heard arguments in April in which Jan Hasselman, an Earthjustice attorney representing the challengers, said the Army Corps could not justify its “out-of-kind mitigation” plan for the basin.

“The Corps can look at the mitigation plan and say ‘we think out-of-kind is better,’ but that requires a high bar. It must be documented. There’s no documentation in the record saying these out-of-kind hardwoods are best for the area,” he said. “There’s no conceivable way that the destruction of hundreds of acres of cypress-tupelo is going to have no environmental impact.”

U.S. Circuit Judge Edith Jones, a Ronald Reagan appointee, seemed satisfied with the mitigation plan at the hearing. She said Louisiana law expressly permits out-of-kind mitigation if there are no in-kind trees available.

“They are not destroying wetlands. They’re going to replace tupelo-cypress with scrub brush wetlands,” she said.

Writing for the 2-1 majority on Friday, Jones said Dick had “misperceived the application regulations.”

“The Corps was authorized to employ out-of-kind credits within the same watershed if they serve the aquatic resource needs of the watershed and if the Corps’ reasoning is documented in the administrative record,” Jones wrote in a 19-page order.

Jones credited the Army Corps’ for basing its permit approval on its Louisiana Wetland Rapid Assessment Method, a tool that assesses projects’ compliance with the Clean Water Act.

“The Supreme Court has held that the use of scientific methodology like that contained in the LRAM is subject to particular judicial deference. … Not to defer to the LRAM would be an error by this court,” Jones wrote.

In addition to tree destruction, the environmentalists worry the Army Corps did not adequately address the project’s cumulative impact, referencing the piles of dirt from canal trenches that other pipeline builders have left behind in the basin.

But Jones gave Bayou Bridge the benefit of the doubt that it will abide by the Army Corps’ permit, which requires the company to bury the pipeline deep enough that it will not impede the removal of dirt piles from old projects.

Jones said the Army Corps can also make Bayou Bridge replant tupelo and cypress trees, though the environmentalists’ lawsuit argued that the destroyed trees are “likely gone forever” because “flood-level flows drown young trees before they can become established.”

U.S. Circuit Judge Thomas Reavley broke with the majority, disagreeing that the Army Corps’ use of the Louisiana Wetland Rapid Assessment Method justified it approving Bayou Bridge’s purchase of 163 acres of hardwood seedlings to offset the lost trees.

“Nowhere does the LRAM explain how to quantify impacts to one resource in terms of another, much less how cypress tupelo and bottomland hardwood—habitats of a ‘different structural and functional type’—can swap seamlessly for each other in terms of the basin’s resource needs,” he wrote in a 5-page dissent.

Jones vacated Dick’s injunction against the pipeline and remanded the case back to her.

U.S. Circuit Judge James E. Graves Jr. joined the majority opinion.

Earthjustice attorney Jan Hasselman did not respond Friday to a request for comment on the ruling, nor did Miguel Estrada, counsel for Bayou Bridge LLC. Estrada works for Gibson, Dunn & Crutcher in Washington.

An assistant U.S. attorney in Baton Rouge who is representing the Army Corps also did not respond to a request for comment.

Gulf Coast Restoration Network and The Atchafalaya Basinkeeper are part of another coalition fighting the pipeline in Louisiana state court.

Grow America’s Infrastructure Now, a coalition of business, trade and union groups that advocates for investing in the nation’s infrastructure, applauded the ruling.

“We’re pleased that the court recognized the Army Corps of Engineers’ diligence and broad legal authority in granting permits for this important infrastructure project…While activist judges remain a potential impediment to major infrastructure projects and the billions of dollars in investment they bring, we are pleased that the judicial process works to ultimately uphold the law – as the appeals court did in this case,” the group’s spokesman Craig Stevens said in a statement.

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