Above Photo: From Courthousenews.com
BATON ROUGE (CN) — Ruling from the bench late Thursday, a federal judge said that a crude oil pipeline under construction through Atchafalaya Basin, North America’s largest swamp, already has caused irreparable harm, galvanizing environmentalists who sued the Army Corps of Engineers for permitting it.
“There has been irreparable harm,” U.S. District Judge Shelly Dick said. “Just the tree-clearing alone of the old growth cypress trees is irreparable.”
Atchafalaya Basinkeeper, the Louisiana Crawfish Producers Association-West and other groups sued the Corps of Engineers in January for issuing permits for the Bayou Bridge Pipeline, a 24-inch-wide, 162.5-mile-long pipeline from Lake Charles east southeast to St. James, Louisiana.
The proposed pipeline will connect with the controversial Dakota Access Pipeline, to bring oil to refineries along the Mississippi River for export.
The plaintiffs, including the Gulf Restoration Network, the Waterkeeper Alliance and the Sierra Club, say the Corps of Engineers shredded environmental laws by declaring that the pipeline “would not have a significant impact on the environment, and did not require a full environmental impact statement.”
Construction began in January. At another hearing Friday, Judge Dick was to determine whether tree clearing and construction through the Atchafalaya must stop.
Environmentalists say the Corps of Engineers violated the Clean Water Act, the Rivers and Harbors Act and the National Environmental Policy Act by merely issuing the permits, “authorizing dredge and fill activities needed to construct the pipeline, substantial portions of which will cross federally protected rivers, streams, lakes, and wetlands, including multiple miles crossing through one of the nation’s ecological crown jewels, the Atchafalaya Basin.”
Lead counsel Jan Hasselman, with Earthjustice in Seattle, sought an injunction in the Jan. 11 complaint, and on Jan. 29 asked for a temporary restraining order.
Following Thursday’s hearing, Hasselman said that if Judge Dick issues an injunction, it will only be for the Atchafalaya portion of the pipeline.
After a preliminary phone call to the Corps of Engineers on Jan. 25, Hasselman said in that request, “counsel for intervenor [Energy Transfer Partners] stated that construction has begun in the Atchafalaya Basin and, as of the time of the call, intervenor would not agree to voluntarily suspend construction in the Basin pending resolution of a preliminary injunction motion.”
Hasselman added in his request for a restraining order that Energy Transfer Partners, which owns 60 percent of Bayou Bridge Pipeline, and the Dakota Access Pipeline, “anticipated that most or all of the [tree] clearing through the Basin would be complete by the middle of February” — next week. “At that time, the company planned to begin constructing ditches and putting the pipeline in place.”
Expert testimony Thursday from environmentalists and crawfishermen showed photos of trees already shredded to wood chips and discarded into slow-moving waters in the basin.
Other photos showed old-growth cypress trees twice the size of a fishing boat, flagged for removal. One showed an old growth tree with a bicentennial marker and a flag beside it.
Dean Wilson, executive director of Atchafalaya Basinkeeper, testified Thursday that though the Corps of Engineers claimed in its permit that just five old growth cypress trees stand in the path of the Bayou Bridge Pipeline and would need to be destroyed, he had personally counted 17 centuries-old trees last week, in what he estimated was just 10 percent of the area of the swamp.
“They are following the line, the way they are destroying the trees,” Wilson said of Energy Transfer Partner’s bayou-clearing method.
Wilson and others testified that Energy Transfer Partners is able to reduce each tree to a pile of wood chips in a matter of minutes, with a wood-chipping machine that starts at the treetop and quickly grinds the tree to the root.
Chipping widens the channel, which allows more sediment to flow in, which stagnates the water, causing hypoxia, or areas of depleted oxygen.
Wilson testified that once the cypress trees go, there is little to no chance they will come back. Jody Meche, president of Louisiana Crawfish Producers Association-West, agreed.
“I haven’t seen anywhere, especially with cypresses, where the trees grow back,” Meche said.
Meche said crawfishing in hypoxic areas is impossible. “When your trap gets covered by water, there is no oxygen and the crawfish die in the trap.”
The Corps of Engineers, represented by the Department of Justice, did not present many arguments Thursday. Neither the Department of Justice nor Energy Transfer Partners called witnesses. William Scherman with Gibson Dunn in Washington, D.C. represents Energy Transfer Partners.
Scherman previously was general counsel for the Federal Energy Regulatory Commission, which was instrumental in transforming policy initiatives, including the Energy Policy Act of 1992, which reformed the natural gas pipeline industry.
Ironically, Scherman’s client Energy Transfer Partners is under investigation today, by the Federal Energy Regulation Commission, for its construction of the Rover pipeline in Ohio and West Virginia. Numerous spills, false statements in permit applications and improper erosion protocols have been alleged.
In one instance, 2 million gallons of drilling fluid were spilled in Ohio wetlands, blanketing more than 9 acres under a slurry of diesel fuel-contaminated water and bentonite clay.
In his closing arguments Thursday, Scherman said that the hearing seemed to be mostly about a bunch of trees. He urged Dick to dismiss the request for a preliminary injunction.
Scherman said the Atchafalaya Basin has 1.4 million acres, two–thirds of which are tupelo cypress. He said the Bayou Bridge Pipeline would destroy just .03 percent of them: “Point zero three percent,” Scherman repeated.
He said the pipeline will not cause irreparable damage, and the Corps of Engineers has stated that the company must mitigate any damage caused by construction.
“Unless your Honor is going to assume a regulatory failure on the part of the Corps,” Scherman said, “you are going to have to assume we will mitigate” any destruction of the Atchafalaya Basin.
Scherman joked that he had learned quite a lot about flooding and the Atchafalaya Basin, being a Yankee, to which Dick replied from the bench: “You still haven’t learned to say Atchafalaya, though.”
After closing arguments, Judge Dick said that mitigation is not sufficient.
“Mitigation is compensation,” she said. “It doesn’t somehow repair the harm.”
Dick, appointed to the federal bench by President Barack Obama, continued: “That’s the government’s language. It’s not the court’s language. And mitigation does not repair ‘irreversibles,’” such as old-growth trees being turned to ash.
The Friday hearing was expected to focus on the preliminary injunction itself. Among topics to be addressed are what the plaintiffs call Energy Transfer Partners’ “abysmal safety record in the thousands of miles of pipelines it operates.”
According to the Jan. 11 lawsuit: “One analysis of federal reporting data — which is widely known to undercount actual spill incidents — reported that ETP and its subsidiary Sunoco Inc. were responsible for 329 ‘significant’ pipeline incidents in between 2006 and 2017 — a rate of over two a month — losing over a million gallons of crude oil and imposing an estimated financial cost of over $67 million. No data is available on smaller incidents.”
Also to be addressed was the Corps of Engineers’ decision not to require an environmental impact statement before permitting a 162-mile-long pipeline through a swamp.
“An oil spill in the dense swamp, particularly during high-water periods when vast areas of the basin are under water, would be an ecological catastrophe,” the complaint states.
Vicki Granado, a spokeswoman for Energy Transfer Partners, said in a November email: “Energy Transfer Partners has always followed all federal, state and local rules and regulations governing our pipelines and related facilities, and will continue to do so.”
She said that 99.96 of the petroleum products transported through ETP pipelines have been delivered to their destination.
Assuming that 0.04 percent of oil was spilled, that amounts to 400 gallons spilled for every 1 million gallons delivered.
Energy Transfer Partners says on its website, checked Friday morning, that “when completed, the Bayou Bridge Pipeline will be capable of transporting up to 480,000 barrels per day of light and heavy crude oil from different sources to the St. James crude oil hub, which is home to important refineries in the Gulf Coast region.”
With 42 gallons per barrel of oil, that translates to 20 million gallons of oil pumped through the Bayou Bridge Pipeline each day. According to ETP’s own calculations, then, 8,000 gallons of oil can be expected to be spilled each day from the pipeline, at 0.04 percent spill ratio.
Hasselman seemed confident after the Thursday hearing, and predicted that his clients would “likely win the case.”