When protests fail, Louisiana environmentalists take Bayou Bridge Pipeline fight to court

Photo: Tulane Environmental Law Clinic | Pictured: Environmentalists and attorneys challenging the Bayou Bridge Pipeline

More than a year of public protests in Louisiana failed to stop state and federal agencies from issuing permits for the Bayou Bridge Pipeline, so the fights at both levels have moved to the courts.

On Thursday, Earthjustice filed suit in the U.S. District Court in Baton Rouge seeking an injunction to block construction of the pipeline through the Atchafalaya Basin and to force the U.S. Army Corps of Engineers (USACE) to conduct an environmental impact study on the project.

Earthjustice, a nonprofit environmental law organization, brought the suit on behalf of four Louisiana groups (Atchafalaya Basinkeeper, Louisiana Crawfish Producers Association-West, Gulf Restoration Network and the Delta Chapter of the Sierra Club) and two nationwide ones (Waterkeeper Alliance and the national Sierra Club).

The USACE issued its permit for the 162-mile pipeline on December 17 without conducting an environmental study on the project. The suit seeks to vacate the permit, order an environmental study, and block work until the study is completed.

The Bayou Bridge Pipeline is the southernmost leg of the Dakota Access Pipeline, which sparked lawsuits and protests in midwestern states over the threat it poses to aquifers, rivers, and people. Bayou Bridge would run from a Phillips 66 refinery in Lake Charles, near the Texas state line, to an oil distribution terminal on the Mississippi River in St. James Parish. The parish sits in the middle of what is known as Cancer Alley — the chemical corridor on the river between Baton Rouge and New Orleans.

St. James Parish, site of the proposed terminal for the Bayou Bridge Pipeline.

This route would take the pipeline across the Atchafalaya Basin, the largest wetland and swamp in the U.S., which is situated between the Mississippi and Atchafalaya rivers. The pipeline would also cross hundreds of bayous and streams, including Bayou Lafourche, which provides drinking water to 300,000 people living south of the pipeline route.

The Bayou Bridge Pipeline is a joint venture of Energy Transfer Partners (ETP) and Phillips 66. ETP is a politically well-connected firm that seeks to move oil from the Bakken oilfield in the Dakotas to refineries on the Gulf Coast and, ultimately, to export markets. Energy Secretary Rick Perry was a member of ETP subsidiary Sunoco Logistics Partners’ board of directors before his appointment by President Trump. Former Louisiana Public Service Commissioner Scott Angelle also served on the Sunoco board until his appointment to run the Interior Department’s Bureau of Safety and Environmental Enforcement. There, he scaled back safety regulations imposed on the offshore oil and gas industry after the 2010 Deepwater Horizon fire, explosion, and gusher in the Gulf of Mexico.

Dean Wilson, executive director of Atchafalaya Basinkeeper, on his boat in the Basin.

“Energy Transfer Partners wants to bring its toxic mix of incompetence and greed to one of the nation’s crown jewel landscapes — the Atchafalaya Basin,” Jan Hasselman, an Earthjustice attorney, said in a press statement. “The Corps’ refusal to look closely at the risks of this project is not just short-sighted, it’s illegal.”

Dean Wilson, the executive director of Atchafalaya Basinkeeper, scoffed at the idea that the USACE understands the stakes in the permit fight.

“The Corps doesn’t even have a single boat in the Basin,” Wilson told 50 States on Friday. “They haven’t taken a firsthand look at what’s been happening in there.”

The USACE is responsible for one of the essential roles of the Atchafalaya Basin — maintaining flood protection for communities along the Mississippi River, including Baton Rouge and New Orleans. The Atchafalaya River provides the shortest path from the Mississippi River to the Gulf of Mexico. In the 1950s, Congress authorized the USACE to build the Old River Control Structure to regulate flooding from the Mississippi.

There are two spillways contained by levees on the east and west sides of the Atchafalaya River. The Morganza Spillway on the east side has had its gates opened occasionally to allow flood waters from the Mississippi to flow into the Basin. The West Atchafalaya Spillway has never been used and has no flood gates.

Wilson told 50 States that the hundreds of pipelines that have been built, combined with the USACE’s failure to enforce the terms of permits, threatens the Basin’s viability as a flood control resource.

“By allowing unsustainable development in the Basin, we are endangering hundreds of cities and communities and millions of people in southern Louisiana,” Wilson said.

Jody Meche is a commercial crawfisherman in the Atchafalaya Basin. He believes pipelines are not only harming the Basin, but have been significant contributors to Louisiana’s coastal wetlands loss.

“We have a right to a healthy environment. If the Cajun people of Louisiana had challenged the first pipeline when it came through Louisiana, we wouldn’t be facing the environmental mess that we have in coastal Louisiana and the Atchafalaya Basin,” Meche said in a statement distributed by Earthjustice.

On January 4, environmental groups were in state court at the 23rd Judicial District, challenging a Louisiana Department of Natural Resources (DNR) coastal use permit awarded for the St. James Parish segment of the pipeline. The suit is brought by Atchafalaya Basinkeeper, Gulf Restoration Network, the St. James Parish-based Humanitarian Enterprise of Loving People, statewide advocacy group BOLD Louisiana, and St. James Parish residents Harry Joseph Sr. and Genevieve Butler.

Tulane Environmental Law Clinic, a nonprofit public interest legal organization run by Tulane Law School, represents the plaintiffs.

The suit was filed on May 31, 2017, after DNR issued a coastal use permit to the pipeline project. It charges DNR with violating the Louisiana Constitution and its own guidelines in issuing the permit.

“The department refused to consider potential adverse environmental impacts of the project on the majority African American residents of St. James, Louisiana, who are surrounded by crude oil terminal facilities, pipelines and associated industry,” the suit charges. “It ignored its constitutional and regulatory duties to consider the cumulative impact of this pipeline when added to other past, present and future operations on this community in the Coastal Zone.”

The suit also suggests that local residents could be trapped in the event of emergencies at multiple plants in the area.

DNR failed to meet its public trust duties under the state constitution, Tulane Environmental Law Clinic Director Lisa Jordan told 50 States.

“One requirement would be to have ETP look at alternative routes, and they never did that,” Jordan said. “They knew their project was starting in Lake Charles and ending in St. James. DNR never had them consider alternative routes. Could there have been other terminals on the river where this pipeline could end and not cause as much wetlands damage? We don’t know, because DNR did not require the company to explore that possibility.”

Anne Rolfes, founding director of the New Orleans-based Louisiana Bucket Brigade, has been active in the fight against the Bayou Bridge Pipeline. She attended the January 4 state court hearing, though her organization is not a party to either the state or federal lawsuit. She told 50 States that elements of the hearing were both depressing and heartening.

“The depressing part was that the attorneys for DNR and the pipeline company sat together at the table, they were literally on the same side,” Rolfes said. “That alone captures the essence of what’s been wrong with DNR for all these years — they are on the side of the companies and not the people of Lousiana. The company’s lawyer did all of the talking, as well.”

Rolfes added that raising the public trust issue in open court was a powerful moment, primarily because it happens so rarely.

“Telling DNR that they have responsibilities to the public, not just the industry, was electrifying,” Rolfes said. “Applause actually broke out in the courtroom.”

Environmental groups have cited a growing body of case law that uses the Louisiana Constitution as the basis for imposing stricter burdens of review on DNR permit applications. Automatic permit approvals by DNR and other state agencies are viewed by environmentalists as the cause of many of Louisiana’s environmental problems.

No date has been set for a ruling on the suit, Jordan said.