The U.S. Fifth Circuit Court of Appeals Thursday rejected a court challenge to federal approvals for a massive oil pipeline and storage project off the Texas coast.
Environmental groups had appealed the federal licensing and permitting for the massive project, claiming that the U.S. Maritime Administration (MARAD) had failed to adequately investigate a number of potential harms to the environment posed by its construction and operation.
In a 25-page opinion written by Judge Dana Douglas, a unanimous three-judge panel ruled that neither the evidence nor the arguments presented by environmental advocates were enough to overturn the approvals granted last year by the U.S. Maritime Administration, allowing the Sea Port Oil Terminal project to proceed.
“The question presented is whether the agency’s approval was arbitrary or capricious,” wrote Judge Douglas, holding it was not.
“[T]he agency adequately considered the environmental consequences of the facility before approving its deepwater port license and, on those grounds, [we] deny the petition for review.”
Construction would include an offshore terminal platform connected by 140 miles of land and underwater pipelines. Known as SPOT, the project is intended to relieve maritime traffic by shallow-water vessels transporting oil exports to VLCC tankers (very large crude carriers) moored off the Texas Gulf Coast.
Midstream giants Enterprise Products Partners and Canada’s Enbridge originally planned the project as partners in 2019. Enbridge has since withdrawn. With an anticipated completion date of 2027, SPOT will have the capacity to move two million barrels of Permian Basin crude per day to its global export platform 30 miles off the Texas coast between Galveston and Corpus Christi, making it the largest offshore terminal in the nation.
Shortly after MARAD approved the project, five environmental groups sued the agency, as well as the U.S. Transportation Department, alleging flaws in the substance and timing of environmental studies required by the Deepwater Port Act and the National Environmental Policy Act.
Petitioners included Better Brazoria (formerly known as Citizens for Clean Air & Water in Brazoria County); Texas Campaign for the Environment, Center for Biological Diversity and Turtle Island Restoration Network through the Sierra Club.
The court, however, also dismissed arguments by Enterprise Products, acting as intervenors, that the environmental groups had no standing – that their concerns were “subjective” and hypothetical without proof of any actual harm.
Not so, said the court. One of the affiants, a Sierra Club member whose home sits near the planned pipeline network, voiced concerns about the increased potential for spills and pollution, as well as the aesthetics of observing migratory bird migrations. That is enough for standing, said the court.
“As the Supreme Court has explained, environmental plaintiffs have a cognizable interest in their ‘desire to use or observe an animal species, even for purely esthetic purposes,'” the court noted.
“Enterprise’s claims are unpersuasive.”
The court was, however, persuaded by the levels of analysis used by the agency to measure the probability of spills, worst-case accidents and effect of pollutants in their Final Environmental Impact Statement concerning the project.
“The record shows that the FEIS indeed analyzed potential effects and risks of worst-case oil spills in several situations that the agency considered ‘reasonably foreseeable.’ For example, the agency considered SPOT’s worst-case discharge for both onshore and offshore components and simulated the resulting oil dispersion across the Gulf,” Douglas wrote.
The agency also modeled meteorological conditions like waves, solar radiation, winds and currents on the spread of potential oil slicks. Likewise, the studies included in-depth biological assessments of their effect on endangered species.
“Because the FEIS offered an in-depth assessment of such adverse effects, its analysis was neither arbitrary nor capricious,” Douglas wrote.
Of particular concern to the environmental groups –– and to the court –– was the fate of the Rice’s whale, a dwindling species of the baleen whale found primarily in the northeastern Gulf of Mexico. Counted among the most endangered whales in the world, only 50 to 100 individuals still exist, according to the National Oceanic and Atmospheric Administration.
Although the long, sleek animals could be threatened by large scale maritime operations, their known habitat is primarily off the Florida and Alabama coasts, hundreds of miles eastward. They’ve not been physically observed in Texas waters near where the project is planned. But in research not published until after the FEIS was completed, scientists revealed that acoustic monitoring in the western Gulf had detected Rice’s whale vocalizations in Texas waters.
Based on that evidence, the environmental groups argued that the process should be remanded to MARAD for further study. The agency said the acoustic evidence would not have changed their analysis of the platform’s effect on the Rice’s whales.
The court agreed. They noted the Rice’s whale inhabits waters ranging in depths of 325 to 1,300 feet.
“The agency explained that SPOT will be constructed in 115-foot water, meaning any encounter with the whale would be ‘quite rare,'” Judge Douglas wrote.
In a statement issued shortly after the ruling was announced, Lauren Parker, an attorney for the Center for Biological Diversity, said the organization was disappointed in the action:
“Allowing the massively polluting SPOT project to proceed will be devastating to communities and wildlife, locking in decades of climate pollution,” she said.
Trevor Carroll, an organizer for Texas Campaign for the Environment Fund, said the organization’s challenge of SPOT will continue.
“Our fight against this is far from over because sacrificing Gulf Coast communities and the global climate just to make it easier for giant corporations to ship our oil overseas is a terrible idea,” Carroll said.
Lawyers for the petitioners include Amy Catherine Dinn in Houston of Lone Star Legal Aid for Citizens for Clean Air & Water in Brazoria County; Erin Gaines and Mike Brown of Earth Justice in Houston for Texas Campaign for the Environment; Lauren Parker and Jason Rylander of Washington D.C. for Center for Biological Diversity and Devorah Ancel and Rebecca McCreary of the Sierra Club in Austin for Turtle Island Restoration Network.
MARAD and its parent agency, the U.S. Department of Transportation were represented by Todd Kim, Ezekiel Peterson, Justin Heminger and Brian Toth, lawyers for the Justice Department’s Environment and Natural Resources Division.
The intervenors, SPOT Terminal Services and Enterprise Products Operating were advised by Catherine Stetson and James Banks of Hogan Lovells in Washington, D.C. and David Keltner, Caitlyn Hubbard and Jacob deKeratry of Kelly Hart & Hallman in Fort Worth.