Appeals Court Reverses Decision Stopping Bayou Bridge Pipeline Work Through Cypress Swamp

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Today the Fifth Circuit Court of Appeals reversed a federal judgeโ€™s temporary injunction halting work on the Bayou Bridge pipeline within Louisianaโ€™sย Atchafalaya Basin.ย In a 2-1 vote the higher courtโ€™s decision will allow construction to proceed while the company, Bayou Bridge Pipeline LLC, a subsidiary of Energy Transfer Partners, appeals theย injunction.

On February 24,ย U.S. District Judge Shelly Dick, an Obama appointee, granted Earthjustice an injunction in order to prevent irreparable harm to theย basin, an environmentally sensitive Nationalย Heritage Area, until the groupโ€™s lawsuit challenging a U.S Army Corp of Engineers permit for the pipeline could beย heard.

Earthjustice had filed this lawsuit January 11 on behalf of the Atchafalaya Basinkeeper, the Louisiana Crawfish Producers Association-West, Gulfย Restoration Network, the Waterkeeper Alliance, and the Sierra Club. The suit alleges that the Corps is not enforcing existing permits for oil and gas pipeline companies already operating in theย basin, where pipelines, canals, and dredge piles traverse the countryโ€™s largest river swamp. According to the suit, the Corps acted โ€œarbitrarily and capriciouslyโ€ in issuing a permit for theย Bayouย Bridgeย pipeline.

Judge Edith Brown Clement, a George W. Bush appointee, wrote in todayโ€™s decision that the โ€œdistrict court abused itsย discretion in granting a preliminary injunctionโ€ blocking pipeline work in the basin. Instead, she wrote, โ€œthe district court should have allowed the case toย proceedโ€ and sought more information from the Army Corps of Engineers justifying why it granted the permit in the firstย place.

โ€œWe are pleased with the 5th Circuitโ€™s Ruling today,โ€ Energy Transfer Partners said in a statement. โ€œWe will begin mobilizing for construction activities as soon as possible, and will do so in full compliance with all permitย conditions.โ€ย 

Oneย the three judges on the appeals court โ€” Eugene Davis, a Reagan appointee โ€” filed a dissent, stating he agreed with the district court that the Army Corps had violated the law inย issuing theย permit.ย 

Atchafalaya Basinkeeperโ€™sย Misha Mitchell said she didnโ€™t feel completely defeated by the decision. โ€œThough it is a disappointment that the injunction was lifted, the fact we got a temporary injunction wasย a big win,โ€ sheย told me shortly after the ruling was made.ย โ€œIt means that ourย strides to protect the basin are being taken seriously and that alone is aย victory.โ€ย ย 

The Bayou Bridge pipeline is the last leg of Energy Transfer Partnersโ€™ Dakota Access pipeline, which begins in North Dakota. This portion will span 162.5 miles from Lake Charles to St. James,ย Louisiana,ย and, ifย the Corps’ย permit is not revoked, will cut through the Atchafalaya Basin, a productive area for commercialย crawfishers.ย 

โ€œMother nature might stop construction if the injunction wonโ€™t,โ€ said Jody Meche, president of the Louisiana Crawfish Producers Association-West. He canโ€™t fathom how the company would be able to work in the flooded basin even with the legal go-ahead. โ€œThis is not political.ย It is common sense.โ€ heย said.ย 

Jody Meche of the Louisiana Crawfish Producers Association-West in the Atchafalaya Basin
Jody Meche assesses the state of pipeline constructionย through theย Atchafalaya Basin a day after a judge granted an injunction haltingย work.

Meche told me that the water in the basin has risen about 14ย feetย sinceย February 25, the day after work was stopped,ย whenย he and I traveled there to see how far construction hadย progressed. At that time, Meche predicted the dirt construction crews had piled along theย pipeline route would be washed away, injunction or no injunction, becauseย nothing was going to stop theย risingย water.ย 

โ€œIt is ridiculous they would even consider going forward with the installation in the basin now,โ€ Meche said. โ€œIt means they have no understanding of the dynamics of the waterย comingย through.โ€ย 

The forecast for the next several days is heavyย rain.

Meche mused that perhaps the water level will go down enough to resume work on the pipeline by the time their original lawsuit is heard. That would be at theย end of April at the earliest,ย heย toldย me.ย 

โ€œYou know that phrase ‘April showers bring May flowers?โ€™ย Meche asked. โ€œIt isnโ€™t even April and we are above flood stage.โ€ย In his view,ย conditionsย may make itย impossible toย install the pipeline safely until the end of June. โ€œWorking now would be precarious, with a fastย current.โ€

Mitchell concurred with Meche about the potential challenges of trying to install the pipeline with water levels so high. She said, depending on the specifications of the permit, she isnโ€™t even sure the Corp will allow construction to resumeย  at thisย point.

Ironically, climate change may be a factor working against the Bayou Bridge pipeline now. More water is coming down the Mississippi Riverย from heavy rains in the north, and an uncertain spring lies ahead, with water levels already running higher thanย usual.ย 

Meanwhile, Energy Transferย Partners’ย safety record continues to worsen sinceย the environmental groups filedย theirย lawsuit.

โ€œIn the first 11 weeks of 2018, [Energy Transferย Partners] has been hit with 36 violations and $12.8 million in proposedย fines by federal and state regulators for their repeated failures to comply with regulations and laws designed to prevent spills, explosions, fires, loss of life and to ensure the publicย safety of their oil and gas operations and pipeline construction operations in multiple states,โ€ wroteย Waterkeeper Allianceโ€™sย Donna Lisenby after theย ruling.

โ€œWe will continue fighting toย hold this reckless company accountable for its weekly acts of water pollution and harm toย communities.โ€

Meche still holds out hopeย the pipeline can be stopped. And if it isnโ€™t, he says, at least he and others are taking a stance to protect their heritage in the Atchafalayaย Basin.ย 

Main image: The empty construction site for the Bayou Bridge pipeline through theย Atchafalaya Basin February 25, the day after a district judge granted an injunction halting work. Credit: Julieย Dermansky

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Julie Dermansky is a multimedia reporter and artist based in New Orleans. She is an affiliate scholar at Rutgers Universityโ€™s Center for the Study of Genocide and Human Rights. Visit her website at www.jsdart.com.

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