Co-author Gunner West
The Fifth Circuit continues to busy itself with deepwater port applications in the Gulf of Whatever-It’s-Called-For-Now. The Deepwater Port Act allows one port per “application area”, which the U.S. Maritime Administration (MARAD) draws for each application. In Citizens for Clean Air & Clean Water in Brazoria County v. U.S. Department of Transportation, the Fifth Circuit vacated MARAD’s approval of Texas GulfLink’s crude export terminal off Freeport, Texas, and remanded to the agency. The court held that the application area must include the proposed port’s pipeline. GulfLink’s pipeline would cross the pipeline of the Sea Port Oil Terminal (SPOT), a competing project MARAD had already approved.
Three applications
MARAD received applications for SPOT, Texas COLT, and Texas GulfLink in 2019. Its notices for SPOT and COLT drew each application area as a circle around the platform plus a quarter nautical mile on each side of the pipeline route to shore. GulfLink’s pipeline would cross both. In GulfLink’s notice, MARAD dropped the pipeline corridor and drew only a circle around the platform, reasoning that Congress had focused on the area around a port’s loading point. COLT withdrew. MARAD approved SPOT in 2022 and GulfLink in February 2025. The Brazoria County plaintiffs petitioned for review … and here we are.
The statutory definition of a deepwater port
Applying Loper Bright, the court gave MARAD no deference. Section 1504(d)(1) of the Deepwater Port Act requires an application area “encompassing the deepwater port site.” The court read “encompass” to mean “surround”. The Act defines “deepwater port” to include its pipelines seaward of the high water mark, and the statutory definition controls unless applying it would be incompatible with Congress’s regulatory scheme or would destroy one of the statute’s major purposes. Therefore, the application area must surround the pipeline as well as the platform.
The government argued that Section 1504(d)(2), which allows “any reasonable geographical area” up to a maximum circle, is the more specific provision and should control. The court disagreed, noting that the “deepwater port” definition is itself specific. Subsection (d)(1) sets the minimum size of the area, (d)(2) sets the maximum, and MARAD’s discretion lies in between. The government’s reading would have made the “encompassing” requirement meaningless. The court also read “deepwater port site” as simply the place where the port will be built.
GulfLink and the government warned that counting pipelines would undercut the Act’s purpose of promoting deepwater ports, because Gulf pipelines cross each other in many places. The court answered that most Gulf pipelines serve production platforms and are not components of a deepwater port. As for pipeline crossings, the one-port rule is implicated only when a proposed port’s pipeline would cross another port’s pipeline, and the Gulf currently has one operating deepwater port, the Louisiana Offshore Oil Port.
The court applied the default remedy of vacatur; MARAD could not cure on remand an error that went to a basic requirement of the Act.
Standing – always a question
Five weeks earlier, in Center for Biological Diversity v. U.S. Department of Transportation, the Fifth Circuit rejected for lack of standing a challenge to MARAD’s 2025 license for Delfin LNG’s floating export terminal. None of the declarants showed a concrete injury traceable to the project. For example, a Louisiana fisherman never said where he fished in relation to Delfin’s facilities. Another declarant lost even though the court assumed he lived close enough to the project; he could not tie his harms to Delfin rather than to industry across the region.
In GulfLink, the court found standing based on a member who owns a home about a mile and a half from GulfLink’s planned tank farm and close to its pipeline route. He said the tank farm could cause flooding that would pollute his well water, bring light and noise that could lower his property value, and draw truck traffic that would damage local roads. He tied those harms to specific places the project would affect, which was enough for injury in fact. The injury was also traceable to MARAD’s approval and redressable by vacatur.
Several lesser-known tunes by Dylan: