Environmental groups urged a Fifth Circuit panel Monday to act quickly to stop a pipeline company’s clearing of old-growth trees in an ecologically rare Louisiana swamp.
Comprised of more than 800,000 acres of forests, swamps, bayous and lakes, the Atchafalaya Basin is home to bobcats, coyotes, foxes, armadillos, opossums, beavers, black bears, raccoons, alligators, crawfish, shrimp, crabs and more than 100 fish species. An estimated 22 million pounds of crawfish are harvested each year from the basin.
The Sierra Club, Gulf Restoration Network, Atchafalaya Basinkeeper, Waterkeeper Alliance and the Louisiana Crawfish Producers Association-West, represented by Earthjustice attorneys, sued the U.S. Army Corps of Engineers in January, seeking to halt construction of the 162-mile Bayou Bridge Pipeline through the Atchafalaya Basin.
“Clearing of trees is underway as we speak, so time is of the essence,” Earthjustice attorney Jan Hasselman told a three-judge panel of the New Orleans-based appeals court during a hearing Monday morning at the Houston federal courthouse.
Hasselman asked the panel to lift a stay that allowed Bayou Bridge Pipeline LLC in March to resume clearing ancient tupelo and cypress trees, after U.S. District Judge Shelly Dick granted the coalition of green groups an injunction the month before that stopped work on the pipeline.
Dick agreed with the environmentalists’ claim that the Army Corps, in deciding the project would not significantly impact the environment, had not explained how Bayou Bridge’s purchase of mitigation credits—hardwood tree seedlings at a mitigation “bank”—would offset the loss of ancient trees the company is cutting down and shredding to make room for its pipeline.
Bayou Bridge’s attorney Miguel Estrada said on Monday that Judge Dick should have deferred to the Army Corps’ decision to approve the project.
“Agencies aren’t required to explain every part of their decision because they have scientific expertise built into their actions. … Even if the district court was correct that a few sentences of explanation [about the mitigation plan] would have helped her understand what the Corps did, she should not have issued an injunction,” he said.
Hasselman countered that the Army Corps did not clear the high bar needed to justify its approval of an “out-of-kind” mitigation plan that uses hardwood trees, such as gum, oak and bald cypress, to make up for the loss of “in-kind” tupelo and cypress trees.
“The Corps can look at the mitigation plan and say ‘we think out-of-kind is better,’ but that requires a high bar. It must be documented. There’s no documentation in the record saying these out-of-kind hardwoods are best for the area … There’s no conceivable way that the destruction of hundreds of acres of cypress-tupelo is going to have no environmental impact,” he said.
But U.S. Circuit Judge Edith Jones, a Ronald Reagan appointee, seemed satisfied with the mitigation plan. She said Louisiana law expressly permits out-of-kind mitigation if there are no in-kind trees available.
“They are not destroying wetlands. They’re going to replace tupelo-cypress with scrub brush wetlands,” she said.
Jones was not in the courtroom. She listened to the proceedings and made remarks via speaker phone. U.S. Circuit Judges James E. Graves and Thomas Reavley heard arguments in the courtroom.
“It’s still in the watershed,” Judge Jones said, after Hasselman noted the trees meant to offset the old-growth loss were 55 miles north of the construction zone.
The panel took the case under advisement and did not say when it would issue a ruling. But the judges are expected to make a decision relatively quickly to ensure it comes before the project is finished.
“They’re basically a third of the way done.… They haven’t put the pipeline in yet,” Hasselman said after the 40-minute hearing. “So they’re grinding trees down as we speak. That’s why we hope the court acts promptly.”
Hasselman said that the trees serving as mitigation credits have already been planted.
“Then they sell the credits. So it’s little trees this big,” he said, holding his hands 2 feet apart.
“They’re not compensating for 1,000-year-old trees,” Hasselman added.
Bayou Bridge Pipeline LLC will get the credits from the Bayou Fisher Mitigation Bank in Pointe Coupee Parish, part of the greater Baton Rouge area.
“Judge Jones is correct from a technical perspective that it’s in the watershed, but it’s not the swamp,” Hasselman told reporters after the hearing.
Due to its proximity to the oil-processing complexes on the Gulf Coast in southeast Texas and Louisiana, the Atchafalaya Basin is crisscrossed with thousands of miles of pipelines.
Environmentalists say pipeline companies have left behind piles of dirt from canal trenches in the Basin, filling wetlands, altering the natural flow of water and creating zones of oxygen-poor water that suffocates crawfish.
With U.S. drillers producing and exporting more oil and natural gas than ever before, pipeline companies are eager to lay pipe to move hydrocarbons from the Midwest and West Texas to refineries and export terminals on the Gulf Coast.
But opposition from environmental groups, armed with evidence that burning fossil fuels is causing climate change, has mushroomed in recent years.
As majority owner of Bayou Bridge Pipeline LLC, Dallas-based Energy Transfer Partners is used to fighting fierce opposition to its pipelines.
Its Dakota Access Pipeline, which runs from the Bakken oil fields in North Dakota to southern Illinois, was held up for weeks in 2016 by lawsuits and massive protests led by Native American tribes who said the pipeline threatened their drinking water and sacred sites.
If completed, the Bayou Bridge Pipeline will connect the Dakota Access Pipeline to bring crude oil from North Dakota to refineries in St. James Parish, La.