Much has been written about the Bayou Bridge Pipeline and the appropriateness of its Army Corps of Engineers’ permit. However, the pipeline venture has hit another legal hurdle in the form of a state court Coastal Use Permit challenge. In Pastor Harry Joseph, Sr, Genevieve Butler, H.E.L.P., the Gulf Coast Restoration Network, The Atchafalaya Basinkeeper, and Bold Louisiana v. Secretary, Louisiana Department of Natural Resources, 38,163, 23rd Judicial District Court, St. James Parish, Judge Alvin Turner, Jr. recently ruled that the Department of Natural Resources (“LDNR”) was arbitrary and capricious in granting the coastal use permit (“CUP”) for the pipeline project. This case was brought on by a Petition for Judicial Review under La. R.S. 49:214.35, which argued that LDNR failed to apply its own Coastal Use Guidelines in granting the CUP and that LDNR violated its duty as the public trustee when it failed to consider the impacts that pipeline project would have on the people of St. James.
In reviewing an application for a CUP, LDNR must apply its Coastal Use Guidelines found at 43 La. Admin. Code Pt. I. 701-719. Not all guidelines are necessarily implicated by every permit application, but the agency is responsible for determining which guidelines are applicable. Two particular guidelines, §711(A) and § 719(K), were flagged by the plaintiffs as improperly ignored by LDNR. It is undisputed that LDNR did not apply those two guidelines, but the question raised by the plaintiffs was whether the facts of the permit application necessitated consideration under those guidelines.
In its CUP decision, LDNR reasoned that §711(A), which relates to surface alterations, did not apply because the more specific 719(K), which covers oil, gas and mineral activity, would apply. However, when reviewing the CUP application under §719(K), LDNR then determined that it too had no applicability. According to the Court, the determination that §719 did not apply, upended the justification for not applying §711. The Court determined instead that both guidelines should have been applied and that the CUP application should be reviewed for its impacts as a surface alteration to the coastal zone (§711) and as an activity that is directly involved in the exploration, production and refining of oil gas and materials (§719). In light of LDNR’s decision not to apply these two guidelines, the Court determined, pursuant to La. R.S. 49:964(G)(5) of the Louisiana Administrative Procedures Act, that LDNR was arbitrary and capricious and the case was remanded to the agency for further consideration. The Court also ordered LDNR to “require Bayou Bridge Pipeline, LLC to develop effective environmental protection and emergency or contingency plans relative to evacuation in the event of a spill or other disaster…prior to the issues of [a new] permit.”
It is unclear at this time whether LDNR will seek an appeal of the ruling or simply bring the CUP back in-house to comply with the Court’s order. If there were to be an appeal, the Court’s silence with regards to the level of deference available to LDNR is striking and likely to come into play. Given the fact that LDNR made an explicit decision not to apply certain coastal use guidelines, it would be expected that an order remanding the permit decision would necessitate a discussion of a core principle of administrative law that “a reviewing court should afford considerable weight to an agency’s construction and interpretation of its rules and regulations adopted under a statutory scheme the agency is entrusted to administer.” Notably, however, St. James Parish sits within the Louisiana Fifth Circuit Court of Appeal, which has had considerably fewer opportunities to develop jurisprudence on agency deference than the Louisiana First Circuit housed in Baton Rouge. Notwithstanding that fact, it seems unlikely that the Fifth Circuit would venture too far from the large body of agency deference case law in its sister circuits.
Read the full decision here.
 Industrial, commercial, urban, residential, and recreational uses are necessary to provide adequate economic growth and development. To this end, such uses will be encouraged in those areas of the coastal zone that are suitable for development. Those uses shall be consistent with the other guidelines and shall, to the maximum extent practicable, take place only:
1. on lands 5 feet or more above sea level or within fast lands; or
2. on lands which have foundation conditions sufficiently stable to support the use, and where flood and storm hazards are minimal or where protection from these hazards can be reasonably well achieved, and where the public safety would not be unreasonably endangered, and:
a. the land is already in high intensity of development use; or
b. there is adequate supporting infrastructure; or
c. the vicinity has a tradition of use for similar habitation or development
43 La. Admin. Code Pt I, 711.
 K. Effective environmental protection and emergency or contingency plans shall be developed and complied with for all mineral operations. 43 La. Admin. Code Pt I, 719.
 Avoca Inc. v. State Department of Natural Resources, 2017 WL 4081624 (La. App. 1 Cir. 9/15/17), citing For v. State, DHH¸166 So.3d 332, 337; Oakville Community Action Group v. La. Dept. of Env. Quality, 05–1365 (La. App. 1 Cir. 5/5/06), 935 So.2d 175, 186; Calcasieu League for Env. Action Now v. Thompson, 93–1978 (La. App. 1 Cir. 7/14/95), 661 So.2d 143, 149, writ denied, 95–2495 (La. 12/15/95), 664 So.2d 459.