Court dismisses LNG lawsuit; Judge says plaintiffs failed to prove harm

A lawsuit against the Brownsville Navigation District by the city of Port Isabel, its mayor and a city commissioner over LNG leases at the Port of Brownsville has been dismissed by the 445th state district court.

Presiding Judge Jose Manuel Bañales on Aug. 7 ordered the case “dismissed with prejudice,” meaning it can’t be brought back to court. The plaintiffs filed suit in January to stop BND from allowing any construction of liquefied natural gas facilities at the port, requesting a preliminary injunction in hopes of an eventual permanent injunction.

BND signed lease agreements with three companies, Annova LNG, Rio Grande LNG and Texas LNG, after each of the company’s proposed projects was approved by the Federal Energy Regulatory Commission (FERC) in November. The lease agreements allow the LNGs to site, build and operate natural gas liquefaction plants and to produce, store and ship millions of metric tons of LNG.

The court wrote that to grant the plaintiffs’ requests to enjoin BND from allowing LNG facilities at the port “would effectively set aside the FERC Orders.”

“The court finds that it cannot grant injunctive relief as so requested, quite simply because FERC has exclusive jurisdiction and authority to approve or not approve LNG siting, construction and operations facilities to the exclusion of state and local authorities, including state court,” wrote the court.

The plaintiffs argued in their suit that LNG activity at the port would have a “detrimental and negative impact upon the environment, including air, soil and water quality” for residents of Port Isabel and wildlife inhabiting the Laguna Atascosa National Wildlife Refuge (LANWR) and surrounding areas. They cited testimony from board-certified environmental engineer David Allen Weeks to the Texas Commission on Environmental Quality concerning Texas LNG’s application to build and operate facilities at the port.

According to the plaintiffs, Weeks testified that airborne contaminants from the LNG plant would be deposited in LANWR and other other areas inside Port Isabel’s corporate and extra-territorial boundaries. Such contaminants can be absorbed into the food chain and create “toxic responses” in birds and other mammals and have “direct adverse effects on the ecosystem itself,” Weeks testified, according to the plaintiffs, who also argued that the possibility of explosions or fires at LNG plants would endanger residents.

Another of the plaintiffs’ arguments against LNG activity at the port made was that it would devastate the local commercial and recreational fishing industry. The lawsuit also accused BND of gross negligence because it knew at the time it signed the lease that LNG plants would damage the environment.

In dismissing the case, however, the court found that the plaintiffs’ predictions of harm to people and the environment are “mere possibilities or speculation” as opposed to facts.

“The Court finds that Plaintiffs have not alleged facts that show probable harm or injury,” Bañales wrote. “The Court also finds that Plaintiffs have failed to plead sufficient facts to support their claims of gross negligence.”

While the lawsuit can’t be brought to trial again, the dismissal itself can be appealed to a higher court. Port Isabel City Manager Jared Hockema said the city plans to appeal and has other legal actions against the LNG companies pending in the U.S. Courts of Appeals for the District of Columbia and Fifth circuits.

In a statement, Eduardo Campirano, port director and CEO, said “the Port of Brownsville remains dedicated to creating a safe, secure and sustainable center for international trade that supports our growing communities and safeguards the local environment. The court’s decision allows us to strengthen our focus on driving new job opportunities and significant economic progress for the Rio Grande Valley.”

sclark@brownsvilleherald.com