Abita Springs is running out of options.
Led by its mayor and an environmental lawyer from Tulane Law School, the north shore town has launched four legal assaults on a planned fracking oil well 4.5 miles southeast of the town limits.
Although the town won a small victory in August, Tuesday brought its third major courtroom defeat, leaving the anti-fracking leaders unsure of their next step.
“I’m very disappointed,” Mayor Greg Lemons said in the courtroom moments after 19th Judicial District Judge Timothy Kelley announced his decision at the conclusion of a one-day trial in Baton Rouge. “I don’t know what now.”
Lisa Jordan, the Tulane Environmental Law Clinic attorney who has handled the town’s legal efforts, echoed Lemons’ disappointment.
She noted that Kelley’s decision can be appealed. The same is true for another defeat, this one handed down by U.S. District Judge Carl Barbier last month.
But whether the town will pursue the appeals remains an open question.
“I’ll have to digest a little bit,” Lemons said.
Tuesday’s trial was the second time Abita Springs had faced off with attorneys from the state’s Department of Natural Resources and Helis Oil & Gas Co. in front of Kelley. In August, Kelley voided Helis’ original drilling permit and ordered DNR to reconsider it. It was the town’s lone victory in the fight against the well. DNR issued the reconsidered permit in September.
Tuesday, Kelley was hearing Abita Springs’ move to invalidate that permit through an injunction, a separate legal procedure from the August one. However, many of the issues at stake were familiar — basically whether the well will hurt Abita Springs economically and environmentally.
Jordan also argued that state Commissioner of Conservation James Welsh had not properly considered parish zoning ordinances in issuing the permit.
Jordan called four witnesses: Helis engineer Michael Barham, Helis CEO David Kerstein, environmental activist Wilma Subra and Stephen Villavaso, a New Orleans planning and zoning expert.
Barham and Kerstein described the process by which they obtained the leases and would drill the well, but Subra’s testimony about potential impacts of the well on Abita Springs was cut short after Helis attorney Matt Jones aggressively questioned her qualifications as an expert. Eventually, Kelley agreed that her expertise was outside the purview of Tuesday’s trial.
Villavaso faced similar objections, though he did get to say he thought Welsh’s assertion that St. Tammany’s zoning regulations didn’t expressly prohibit drilling was a poor reading of the law.
Kelley said he was not convinced that Abita Springs would suffer “irreparable harm” or that Welsh had acted “arbitrarily and capriciously,” standards required by the law for him to issue an injunction blocking the well.
“I have really looked at this closely,” Kelley said in issuing his decision. “I just don’t see ‘arbitrary and capricious’ or ‘irreparable harm,’ and I have tried to bend over backward to see it.”
DNR attorney Daniel Henry said the decision validated Welsh’s decision to issue the permit.
Kerstein did not comment after the hearing, but Helis spokesman Greg Beuerman said the company was very happy with the decision.
All eyes will now turn to the state’s 1st Circuit Court of Appeal, site of the lone remaining active suit against the well. Arguments in that case were heard in November, and a decision is expected at any time.
While that appeal is pending, a parish stop-work order prohibits any work from taking place at the drilling site.
Follow Faimon A. Roberts III on Twitter, @faimon.