The United States Court of Appeals for the Fifth Circuit has overruled a trial court and allowed construction of the Bayou Bridge Pipeline to continue. In allowing construction to continue, the appellate court stated that it is likely that the district judge’s decision to stop construction was an “abuse of discretion.”
The case involves claims by several environmental groups that the United States Army Corps of Engineers (“USACE”) violated the National Environmental Policy Act (“NEPA”) in permitting the pipeline project.
District Judge Issued a Preliminary Injunction
Just a few weeks ago, in Atchafalaya Basinkeeper v. USACE, the district (trial level) judge issued a preliminary injunction that all work on the pipeline within the Atchafalaya Basin must stop, until a final decision after full trial. The district judge had determined that Atchafalaya Basinkeeper had some chance at proving that USACE violated NEPA for several reasons, including the failure to adequately consider alternative strategies for mitigating the loss of wetlands that the project will cause.
Pipeline Company Appeals
The pipeline company appealed to the Fifth Circuit. It requested that the appellate court dissolve the preliminary injunction; it also requested a stay of the preliminary injunction during the appeals process. Although not a final ruling on the request to dissolve, a three judge panel of the Fifth Circuit voted 2-1 to stay the preliminary injunction. In the opinion of this panel, instead of issuing the preliminary injunction, “the district court should have allowed the case to proceed on the merits and sought additional briefing from the Corps” regarding the district judge’s concerns.
In addition to staying the preliminary injunction pending appeal, the panel also ordered that the appeal be expedited to the next available oral argument panel, so that a final determination on dissolving the preliminary injunction can be made as quickly as possible.
The dissenting judge issued a separate opinion supporting the district judge’s decision.
The ruling strongly suggests that the two judges in the majority think that the preliminary injunction should be dissolved. For now, this ruling allows construction on the pipeline to continue until another Fifth Circuit panel makes a final ruling on the request to dissolve the preliminary injunction.
***On Tuesday, April 3rd, I will be speaking at the 4C Health/Safety/Environmental Conference held at the JW Marriott Hill Country Resort in San Antonio. If you plan to attend, please join me at 3:00 PM in the Grand Oaks A Room as I discuss Enforcement: The State and Local Perspective. For more information on the 4C Conference, please go to https://www.4cconference.com.