Judge Tells Why She Stopped Pipeline Through Atchafalaya Swamp

BATON ROUGE (CN) — The federal judge who granted environmentalists’ injunction to stop a pipeline from crossing the Atchafalaya Basin concluded that public interest in wetlands outweighs a company’s potential financial setbacks.

In a 60-page ruling Tuesday, U.S. District Judge Shelly Dick states why she suspended construction of the Bayou Bridge Pipeline through the Atchafalaya Basin on Feb. 23, until the case can be tried on its merits.

Dick said the pipeline threatens the health and longevity of the Atchafalaya Basin, the largest river swamp in North America. She agreed with environmentalists who filed the lawsuit that the centuries-old cypress and tupelo trees in the path of the pipeline are irreplaceable.

“While an injunction could delay the schedule for this project, it is well established that temporary economic harm does not outweigh permanent environmental degradation such as loss of forests – especially ancient trees – or damage to wetlands,” Judge Dick wrote.

Bayou Bridge Pipeline LLC filed an appeal Monday, asking Dick to suspend her order until the matter has been decided. Dick declined.

She said that since the preliminary injunction she issued last Friday pertains only to the Atchafalaya portion of the 162.5-mile-long crude oil pipeline, being built from Lake Charles to St. James Parish by Bayou Bridge LLC, the company will have plenty of work to do while she continues to weigh the issue.

Atchafalaya Basinkeeper, Louisiana Crawfish Producers Association–West, Gulf Restoration Civil Action Network, Waterkeeper Alliance and the Sierra Club, represented by attorneys from EarthJustice, sued the Army Corps of Engineers in January, saying it issued Bayou Bridge a construction permit without a full environmental assessment, in violation of the Clean Water Act and other laws.

Dick’s Friday order halted all work in the Atchafalaya Basin until the case has been tried.

Bayou Bridge Pipeline LLC is a joint venture between Energy Transfer Partners and Phillips 66. Energy Transfer Partners built and owns the controversial Dakota Access pipeline. The Bayou Bridge pipeline will connect the Bakken oil fields in North Dakota with Louisiana refineries and export terminals.

The Corps of Engineers completed two environmental assessments for the project before issuing the permit. Company attorneys said the Corps of Engineers’ permit requires Bayou Bridge Pipeline to restore the Basin’s “pre-existing wetland contours and conditions” when the project is done.

However, Judge Dick said the Corps of Engineers did not show it took into consideration past and present cumulative environmental impacts.

“The Corps’ and BBP’s [Bayou Bridge Pipeline’s] myopic view that they are only required to consider the impacts of this singular project is not consistent with the regulations or applicable jurisprudence,” Dick wrote.

The environmentalists also said the Corps of Engineers did not adequately consider the risk of oil spills, but the judge disagreed, finding the Corps gave “extensive and appropriate consideration” to the risk of oil spills along the entire route of the pipeline, including in the Basin.

Pipeline construction through the Basin began in January. The plaintiffs challenged the permit on Jan. 11. Two weeks later they sought an injunction to stop construction through the Basin altogether.

The Corps and Bayou Bridge Pipeline complained in court documents that plaintiffs waited too long to file a lawsuit. Plaintiffs responded that they had no idea construction was going to begin so soon.

Dick ruled that for a preliminary injunction to be approved, the plaintiffs must show a likelihood of success.

She found that plaintiffs’ arguments showed that Bayou Bridge’s proposed construction through the Atchafalaya posed a clear threat to the environment, and that the plaintiffs “have demonstrated a likelihood of success on the merits regarding mitigation.”

Paperwork filed by the Corps of Engineers during the permitting process indicated the project would affect 597.5 acres of wetlands, with an ultimate loss of 142 acres.

Dick noted in the Tuesday order that documents show the Louisiana Department of Environmental Quality raised concerns that running the pipeline through the Atchafalaya “would add to the cumulative effect of ecologically detrimental hydrologic alteration, and the pipeline would obstruct planned efforts to restore hydrologic function.”

The Corps of Engineers did not reply to this concern and did not require an additional assessment to weigh the threat of clearing 75 feet of wetlands and burying a pipeline, Dick said.

Dick found the Corps was realistic about the value of wetlands and what might be lost through this project, but did not properly consider how to offset such losses.

In its environmental assessment, the Corps acknowledged that “wetlands act as filters to remove excess nutrients and toxic pollutants from the water.”

“They are tremendous filters for human sewage, toxic metals, and other types of pollutants.  … Wetlands also buffer coastal areas against wind and waves, and hold excess floodwater to help protect cities and towns during hurricanes and heavy rains. … Wetlands provid[e] a very productive habitat for a variety of fish and wildlife species,” the assessment continued.

The Corps of Engineers estimated 142 acres would be “permanently impacted” during pipeline construction: “i.e., irretrievably lost,” Dick wrote.

The plaintiffs claimed the Corps of Engineers did not allow enough time for public comment, but Dick disagreed.

Plaintiffs also said the Corp’s plans to mitigate wetland losses did not measure up to what is lawfully required. Judge Dick agreed.

Typically, environmental mitigation programs are undertaken in the same region as the project that caused the environmental destruction.

Plaintiffs showed they had proposed that the Corps of Engineers require Bayou Bridge Pipeline to clean up spoil banks left in the wetlands from previous pipeline constructions that did not follow state and federal protocol.

Instead, however, the Corps required Bayou Bridge to purchase environmental mitigation credits for projects far away from the Atchafalaya Basin, in violation of regulation, Dick found.

Additionally, though the Corps said Bayou Bridge would purchase 1,499 Cypress/Tupelo mitigation credits to offset losses of cypress and tupelo swamp, Bayou Bridge purchased just 434.5. To make up for the remaining, unpurchased credits, Bayou Bridge, with the Corps’ acknowledgement, purchased the remaining credits to mitigate effects of losses to Bottomland Hardwoods.

“In a footnote [in the Corps’ environmental assessment], the Corps discloses that ‘1,067.4 BLH [Bottomland Hardwoods] credits were purchased as an out-of-kind/in-basin credits to offset impacts to bald cypress/tupelo swamp,’” Judge Dick wrote.

The Corps of Engineers “concluded that the ‘effect’ on the wetlands was ‘neutral as a result of mitigative action,’” Dick wrote — and disagreed.

“There is not an iota of discussion, analysis, or explanation, how BLH credits mitigate the loss of function and value of the cypress/tupelo swamp impact.”

Additionally, to offset construction-related impacts, Bayou Bridge Pipeline said in the Corps of Engineers’ environmental assessment that it would implement “Best Management Practices” to offset certain environmental impacts.

“However,” Dick wrote, “there is precious little analysis of what ‘best practices’ will offset temporary impacts.”

Bayou Bridge claimed that halting construction through the Basin would cost it nearly $1 million a day, or $25 million a month, and would force layoffs, hurting the economy.

But Dick said those losses were not demonstrated in the “underlying data.”

Dick concluded that the temporary delay in Bayou Bridge’s reaping profits from the pipeline “does not outweigh the permanent harm to the environment that has been established as a result of the pipeline construction.”

“The balance of harms and the public interest in the environment weighs in favor of an injunction,” Dick wrote.

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