HOUSTON (CN) — Ocelots inhabiting scrubland at the tip of Texas loomed large in a Fifth Circuit hearing Wednesday, as environmental groups assailed the government's approval of liquid natural gas projects they say will imperil the endangered cats.
Ocelots live throughout Central and South America. Texans are often surprised to learn the tropical cat is native to the state.
Of the 53 documented in South Texas, 39 live on private ranch lands, while 14 dwell further south in the Laguna Atascosa National Wildlife Refuge.
Sightings are rare because they live in dense thorny brush and venture out at night to hunt for rodents and lizards.
Listed as endangered in the U.S. in 1972, an estimated 95% of ocelots’ thornscrub habitat in Texas has been cleared for farming, recreation and urban development.
Despite their elusiveness, they are frequently found dead on South Texas roads after being hit by vehicles.
Now the 14 inhabitants of the wildlife refuge are facing another threat: liquid natural gas.
An oil drilling boom in the Permian Basin of West Texas and southeast New Mexico presented a quandary to drillers: What to do with natural gas extracted with the oil?
With a lack of pipelines needed to move it to refineries on the Gulf Coast, many drillers have taken to burning the gas.
Now projects are in the works to address this problem.
The Rio Bravo Pipeline Company plans to build two pipelines from a hub near Corpus Christi, which is linked by other pipelines to West Texas, to a liquid natural gas export terminal on the northern bank of the Brownsville Ship Channel.
Both the pipeline and terminal, set for construction on a 900-acre site, will affect the 14 ocelots in the refuge.
But in a biological opinion it prepared for the project, the U.S. Fish and Wildlife Service found it would not put the ocelots in jeopardy of extinction and authorized an "incidental take" of one ocelot or jaguarundi, another endangered cat that lives in the area.
If more than one of the cats is either killed, injured or harassed in the construction or operation of the project, the owners must reinitiate consultation with the Fish and Wildlife Service on how to mitigate the harm.
Investors for the terminal have yet to decide if they are going to fund it. They are expected to make a final decision in December.
The Sierra Club and Defenders of Wildlife filed a petition with the Fifth Circuit challenging the Fish and Wildlife Service’s opinion.
Defending the government before a three-judge panel of the Fifth Circuit Wednesday, Justice Department attorney Daniel Halainen said the biological opinion is sound because it’s based on data from Fish and Wildlife Service scientists who have been working on South Texas ocelot conservation for decades.
The government's recovery plan contemplates acquiring land to create a 5-mile "South Texas Ocelot Coastal Corridor" connecting 2 million acres of South Texas ranchland with 1.3 million acres in a wildlife protection zone teeming with ocelots in northern Mexico.
Because the Texas group is only 14 cats, they have genetic problems caused by inbreeding and need to reach new mates in northern Mexico to avoid extinction.
The environmentalists say the pipeline and terminal will destroy 262 acres of shrubland habitat for the ocelot and the jaguarundi.
To make up for that, the government made the project developers buy 1,050 acres of ocelot habitat for conservation. “That has now occurred,” Jeremy Marwell of the Washington bureau of Vinson & Elkins told the panel, representing Rio Bravo Pipeline Company, which intervened in the case with the terminal developer Rio Grande LNG.
Sierra Club attorney Devorah Ancel said the government was wrong to find the project would not jeopardize the ocelots because the Fish and Wildlife Service has already authorized the “take” of more than 20 ocelots in the area for other projects.
U.S. Circuit Judge Carolyn Dineen King, a Jimmy Carter appointee, asked about the broader health of the species.
"When you talk about the ocelot just disappearing...Is that decided only with respect to ocelots that occur in the United States? Because as I understand it, there's a lot of ocelots south of the United States all the way to Buenos Aires.”
Is the Endangered Species Act “only concerned with what dies in this country?” she asked.
Ancel replied the agency has to do a jeopardy analysis on the Texas population, the focus of their management, and how it affects the long term recovery and survival of the species as a whole.
"No such analysis was done here," she said.
If the Rio Grande terminal is built, its developers say it will produce 27 million tons of LNG per year for export.
The government has also approved Annova LNG Common Infrastructure LLC's construction of an LNG export terminal, with projected capacity of 6.95 million tons per year, on the southern bank of the Brownsville Ship Channel.
The Sierra Club and Defenders of Wildlife challenged the Fish and Wildlife Service's analysis of that project's effect on ocelots and jaguarundis as well because the agency did not take into account the combined effect of the two export terminals on the 14 ocelots in the wildlife refuge.
The Fifth Circuit panel heard the cases together Wednesday.
Sierra Club attorney Eric Huber said the Annova project will eliminate 220 acres of ocelot habitat.
"Taking 220 acres out will decrease the effect of habitat linkage from the wildlife refuge down to Mexico," he said.
The Annova terminal would sprawl across 491 acres and take four years to build. Like the Rio Grande project, it’s an open question if the Annova terminal will be funded.
Huber said the government based its analysis on the operation of the Annova terminal.
"But it's different for construction and construction goes on for four years," Huber said. He said the noise of heavy equipment will disrupt the ocelots in the refuge, regardless if they are on the opposite side of the ship channel, as animals have higher sensitivity to noise than humans.
Annova also intervened in the case. Its counsel Brett Snyder of Blank Rome told the panel it makes sense the government did not consider the cumulative effect of the Rio Grande project with Annova's.
"The Rio Grande project is a larger project, approximately four times the production size, located across the shipping channel and geographically closer to the Laguna Atascosa refuge. It also has a 135-mile pipeline that spans five counties running to the north, closer to the Laguna Atascosa population of ocelots, which is approximately 11 miles from Annova," he said.
U.S. Circuit Judge Jennifer Walker Elrod, a George W. Bush appointee, asked Huber what relief he’s looking for.
The Sierra Club attorney said he wants the appellate court to vacate the Fish and Wildlife Service's biological opinion for Annova and remand it, ordering the agency to develop a new one.
The environmental groups are seeking a similar vacatur and remand order for the agency's opinion authorizing the Rio Bravo-Rio Grande pipeline and terminal. Construction of that project would take an estimated seven years.
U.S. Circuit Judge Don Willett, a Trump appointee, rounded out the panel.
The judges did not say when they would rule on the petitions.
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