As we await Appellate Court action in the Louisiana Bayou Bridge Pipeline case, GAIN legal advisor, Prof. Richard Epstein, has provided his perspective on Judge Shelly Dick’s ruling, calling it “an aggressive reading of the phrase ‘arbitrary and capricious’ that arrogates unto the courts the power to decide which pipelines should be completed and which should be forced to remain in limbo…” I have included Prof. Epstein’s entire statement below.
Richard A. Epstein, the Laurence A. Tisch professor of Law at NYU, senior fellow at the Hoover Institution, and senior lecturer at the University of Chicago Law School, advises our coalition on legal and regulatory questions. Prof. Epstein is an American legal scholar who studies on a wide variety of topics in law and economics. His writings have extensively influenced modern American legal thought. A study of legal publications between 2009 and 2013 found Epstein to be among the top three most frequently cited American legal scholars during that period.
As GAIN has previously noted, Judge Dick’s rulings run counter to federal and state regulations as well as established case law. The preliminary injunction will cause lasting and irreparable harm to the pipeline’s operators, communities in Louisiana, and about 2,500 construction workers.
Below is Prof. Richard Epstein’s full statement. Also, you can follow us on Twitter @GAINNowAmerica and Prof. Epstein @RichardAEpstein. If you would like further comment from Prof. Epstein, please let me know and I will try to set it up. Thanks.
Below are Prof. Epstein’s comments:
“Judge Shelly Dick has adopted an aggressive reading of the phrase ‘arbitrary and capricious’ that arrogates unto the courts the power to decide which pipelines should be completed and which should be forced to remain in limbo long after construction has begun. By judicial fiat, arbitrary and capricious has become a form of strict scrutiny never contemplated under NEPA and the Administrative Procedure Act.
“Judge Dick insisted that detailed plans for mitigation of environmental damage be put into place before pipeline construction was completed, even though she had discretion to allow those matters to be considered later on in the construction cycle, when better information can determine what risks are salient and what are not. Next, she held that Bayou Bridge Pipeline should be charged with asserted actions of noncompliance by other pipeline companies at other times, even though the Army Corps has full regulatory authority to police all its ongoing actions. Finally, the massive dislocation from construction delay, including the possible negative environmental impacts from continued shipment of oil by truck and rail, were ignored. And the economic dislocation to BBP, its employees, customers, and local communities were disregarded because BBP was said to have some unexplained capacity to mitigate the cumulative losses of this delay.”