Louisiana Court OKs Pipeline Construction in Wetlands

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)

GRETNA, La. (CN) – A Louisiana appeals court ruled 4-1 Wednesday that the state’s Department of Natural Resources properly issued a permit for the construction of the Bayou Bridge Pipeline through fragile wetlands and an area known as “cancer alley” for its chemical plants and residents’ health problems.

In a lone dissent, Fifth Circuit Court of Appeal Judge Marc Johnson said the agency’s responsibilities under the Louisiana Constitution require preserving health and the environment as much as possible, but that it instead “gave significant consideration to the economic benefits and minimal consideration to the environmental effects on the wildlife and habitats … [and] virtually no consideration to the impact on the human lives” in the area traversed by the pipeline.

The lawsuit was filed in St. James Parish in 2017 by Humanitarian Enterprise of Loving People, Gulf Restoration Network, Atchafalaya Basinkeeper, Bold Louisiana and two residents who said the Department of Natural Resources erred in issuing a permit to Bayou Bridge Pipeline LLC because the pipeline will cross protected wetlands and a town in “cancer alley” that has no evacuation route in case of an emergency such as a chemical spill, which they said is likely.

Judge Alvin Turner Jr. of the 23rd Judicial District Court in St. James Parish agreed with plaintiffs and ruled last April that the DNR’s permit for construction violates state law and the project must stop. Construction continued, however, and in May, Turner reiterated that it must be halted until the state appeals court decided whether the permit was legal.

The Bayou Bridge Pipeline is jointly owned by Energy Transfer Partners, which merged with Sunoco in 2012, and Phillips 66.

The 162-mile crude oil pipeline will carry almost half a million gallons of oil a day across 11 Louisiana parishes and 700 bodies of water, from Nederland, Texas, to St. James Parish, roughly 60 miles from New Orleans. Louisiana has parishes instead of counties.

St. James Parish is located along the Mississippi River in a stretch between Baton Rouge and New Orleans known as “cancer alley” because of the high concentration of refineries and chemical plants as well as the notoriously poor health of its residents.

Energy Transfer Partners also built and owns the controversial Dakota Access Pipeline. The Bayou Bridge Pipeline will be the final leg connecting the Bakken oil fields in North Dakota with Louisiana refineries and export terminals.

The coastal zone in question is the last 18 miles of the Bayou Bridge Pipeline, which includes land in St. James and Ascension parishes. Because the area is considered coastal, the DNR was tasked with reviewing state laws related to construction and issuing the permit.

Judge Turner last summer found that the department did not apply state-mandated guidelines on the activities of companies involved in oil and gas, a fact he called “troubling.” He further found that the DNR should have required a plan for evacuation in the event of a spill or a disaster in accordance with state guidelines.

The state appeals court judges disagreed Wednesday, saying the plaintiffs and Judge Turner had attempted to apply state guidelines governing oil and gas, to a pipeline, which is not oil and gas itself but merely a mode of transportation for oil and gas. 

In the 15-page decision penned by Judge Stephen Windhorst, the majority agreed with the DNR’s decision to issue the permit without requiring an evacuation route for the community living in Burton Lane in St. James Parish, saying “there is no indication in the record that the proposed pipeline will change existing evacuation routes.” The judges also ruled that the local government, not the private company, is responsible for evacuation routes and procedures.

The panel found that the department made 11 requests for comment and obtained a permit from the Bayou Lafourche Fresh Water District to cross the bayou prior to issuing the permit.

The ruling also says St. James Parish issued two separate letters stating it “has no objection and supports the project.”

The judges found the department did its best to weigh all factors when issuing the permit, saying that the DNR “conducted a systematic consideration of all pertinent information regarding the use, the site and the impacts of the use and a balancing of their relative significant public benefits with adverse impacts.”

But in his dissent, Judge Johnson disagreed, saying “the analysis does not consider the overall welfare of the public when placing the pipeline in an area already inundated with chemical facilities.”

Johnson also said the Louisiana Constitution requires that natural resources of the state, including air and water, shall be protected and “replenished insofar as possible and consistent with the health, safety, and welfare of the people.”

He said upon “reviewing the reasons for DNR’s decision, I find that DNR’s adopted decision gave significant consideration to the economic benefits and minimal consideration to the environmental effects on the wildlife and habitats; yet, it gave virtually no consideration to the impact on the human lives in that area.”

“As a result, I find that DNR’s decision was arbitrary and gave insufficient weight to the welfare of the people; thus, it was a violation of DNR’s duty of public trust to issue Bayou Pipeline the coastal use permit for the pipeline,” the judge continued.

In conclusion, Johnson wrote that the DNR’s permit “violated its duty of public trust.”

Patrick Courreges, communications director for the DNR, said in a phone call Thursday that he wasn’t surprised by Wednesday’s ruling.

“The reason we appealed is we maintained all along that our staff did it the right way,” Courreges said. 

Judge Windhorst’s majority decision was joined by Judges Susan Chehardy, Robert Chaisson and Hans Liljeberg.

The pipeline company also prevailed in federal courts after a divided Fifth Circuit ruled in September that the U.S. Army Corps of Engineers properly approved the construction.

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