High deference

A federal judge refused to order a halt to construction on Bayou Bridge.  This isn't the end of the case but there's little reason to expect success. At least that's what the judge says.

Dick said the plaintiffs correctly noted that they didn’t have to “win the case” at this stage. But the judge said she couldn’t justify the “extraordinary remedy” of a temporary restraining order because she isn’t convinced it’s “substantially likely” the groups will “prevail on the merits” of the case.

Energy Transfer Partners spokeswoman Alexis Daniel said in an email Tuesday that “construction activities” began in the basin earlier this month.

Yesterday a letter appeared in the Advocate laying out some of the lawsuit's complaints. Among those, the Corps of Engineers' faulty adherence to its own permitting procedure. 

The Corps must also analyze and address the cumulative impacts of a proposed project. Cumulative impacts are the result of any past, present, or future actions that are reasonably certain to occur. Such effects “can result from individually minor but collectively significant actions taking place over a period of time.”

Leaving spoil banks in place after completion of pipeline construction is a violation of permits issued by the Corps. However, the Corps has failed to enforce such permits; allowing pipeline companies to leave these spoil banks in place for years or decades, to the considerable detriment of the Basin’s ecology. Given budget cuts to all agencies, I’ll speculate there isn’t funding to enforce the law. Permit cost needs to be high enough to pay for verification of compliance. And failure to comply should carry a penalty big enough so it’s cheaper to comply than not.

But, as the judge points out, the Corps tends to get a lot of leeway.

Judge Dick, however, said she reviewed the Corps’ 92-page environmental assessment and “cannot find that the Corps was arbitrary and capricious” in its review.

“Simply having an opposing opinion, or disagreeing with the mitigation plans imposed, is insufficient to establish a substantial likelihood of success on the merits, especially in light of the high deference that the law requires the Court to afford the Corps,” she wrote.

Right now flooded out Houstonians are grappling with the implications of that same high deference. We're already pretty familiar with it ourselves.