- By MICHAEL KUNZELMAN, Associated Press
By MICHAEL KUNZELMAN, Associated Press
NEW ORLEANS (AP) — A company building a crude oil pipeline in Louisiana asked a federal appeals court Tuesday for an order that would allow it to immediately resume construction work in an environmentally fragile swamp.
A three-judge panel from the 5th U.S. Circuit Court of Appeals didn’t immediately rule after hearing arguments from attorneys for Bayou Bridge Pipeline LLC and environmental groups opposed to the project. The company is seeking an emergency stay that would lift a court-ordered halt in pipeline construction in the Atchafalaya Basin.
Company attorney Miguel Estrada said “time is of the essence” because water levels in the basin are rising due to the rainy reason. A permit issued by the U.S. Army Corps of Engineers requires the company to stop construction if river levels reach a certain height.
Estrada said the company could resume work for weeks before water levels reach that threshold and possibly remain above it for several months.
“We’re hoping we can make up the lost time,” he added.
In court filings, environmental groups’ lawyers said water levels already have reached a level that makes it unlawful for the company to resume pipeline construction in the basin.
After the hearing, however, Earthjustice attorney Jan Hasselman said the company can still do “a whole lot of damage” if the 5th Circuit lifts the stay and allows the company to resume clearing a path for the pipeline in most of the basin.
“What they wouldn’t be able to do is actually finish the pipeline because they’re prohibited from digging under the levees in a couple other places,” he added. “We’re in flood season. They can’t finish the project until the end of the year at the very best, so there’s no reason to lift the injunction.”
On Feb. 23, U.S. District Judge Shelly Dick sided with environmental groups and issued a preliminary injunction that suspended work in the basin until the groups’ lawsuit is resolved. The judge concluded the Bayou Bridge pipeline project’s irreversible environmental damage outweighs the economic harm that a delay brings to the company. And last Thursday, she refused to suspend her own ruling while the company appeals it.
In court filings, company attorneys claim Dick’s ruling “fails the basic requirements” for issuing such an order.
Judge W. Eugene Davis of the 5th Circuit said he hasn’t heard much opposition to the judge’s finding that the project was causing permanent harm to the basin.
“The real issue is whether the mitigation is appropriate,” he added.
The company argues the Corps adequately considered measures to mitigate damage and offset the project’s impacts. Environmental groups say Dick correctly concluded that the Corps failed to adequately analyze and explain its decision to allow Bayou Bridge to mitigate the destruction of swampland by purchasing “mitigation credits” in an area 55 miles (88 kilometers) from the project site.
The basin accounts for approximately 23 miles (37 kilometers) of the pipeline’s 162-mile-long (261-kilometer) path from Lake Charles to St. James Parish.
Dick’s order only applies to the basin and doesn’t prevent the company from working elsewhere along the route.
Sierra Club and other environmental groups sued the Corps of Engineers in January, saying it violated the Clean Water Act and other environmental laws when it approved a permit for the project.
Dick said the project potentially threatens the hydrology of the basin and “poses the threat of destruction of already diminishing wetlands.” She also agreed with environmental groups that centuries-old “legacy” trees can’t be replaced once they’re cut down.
Bayou Bridge Pipeline LLC is a joint venture of Phillips 66 and Energy Transfer Partners, the company whose construction of the Dakota Access pipeline provoked violent clashes between protesters and police in North Dakota in 2016 and 2017. The Bayou Bridge pipeline is the last link in a network connecting the Bakken oil fields in North Dakota with Louisiana refineries and export terminals.