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Opponents Sue Kinder Morgan Over Pipeline

Wednesday, January 29, 2020

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At the beginning of this month, construction on the western phase of the Permian Highway Pipeline in Texas restarted after over a year of negotiations and legal issues.

While Kinder Morgan is still waiting for required permits from the U.S. Army Corps of Engineers and the U.S. Fish & Wildlife Service, the company expects construction will press forward.

However, pending legal challenges have the potential to yet again halt the pipeline’s progress.

Project History

In September 2018, Kinder Morgan, along with EagleClaw Midstream Ventures, a portfolio company of Blackstone Energy Partners, announced the decision to proceed with the Permian Highway pipeline. Shippers attached to the project include EagleClaw, Apache Corporation and XTO Energy Inc., a subsidiary of Exxon Mobil, as well as others. Kinder Morgan and EagleClaw were the initial partners, each with 50% ownership of the project.

The pipeline would carry 2 billion cubic feet of natural gas daily over 430 miles of 42-inch pipeline, running from the Coyanosa, Texas, area to Gulf Coast markets. According to Kinder Morgan, KMTP will both build and operate the pipeline.

An estimated 2,500 construction jobs and 18 full-time ongoing positions were reported to be available following the competition of the pipeline.

In March of last year, the San Marcos city council announced plans to oppose the development of the pipeline, requesting action from both houses of the Texas Legislature in protecting landowners and their rights, along with communities.

In late spring, Hill Country, Texas, landowners, along with City of Kyle officials and Hays County, filed a lawsuit against Kinder Morgan Texas Pipeline and the Railroad Commission in regard to the company’s proposed pipeline, citing that the state agency responsible for oil and gas regulation and eminent domain needed to be challenged. The group asked a judge to put a stop to construction.

At the end of May, Judge Lora Livingston and the 261st State District Court in Austin began listening to arguments to decide the outcome of the anti-eminent lawsuit. In late June, construction on the pipeline was allowed to proceed.

The following month, Kinder Morgan sued over a measure that would prevent the pipeline from running through town. The lawsuit alleged that the City of Kyle transgressed boundaries in passing an early July ordinance that regulates the construction of natural gas pipelines within the city, which mandates that all pipelines 30 inches in diameter or more would need a city permit.

At the time, Kinder Morgan also filed a complaint with the Railroad Commission, saying that the current route, which is, according to the company, environmentally sound, impacted the least number of landowners.

In August, the Audubon Society reported that the Permian pipeline cut a “roughly 80-mile route” through one of the reportedly last parts of Texas not being marked by extraction. Romey Swanson, Director of Conservation Strategy for Audubon Texas, also added that the presence of the pipeline would further impact local populations of endangered songbird, the golden-cheeked warbler.

The golden-cheeked warbler is black and white with yellow along its face and currently has a population of around 27,000. The birds migrate from Central America to nest in the Hill Country in the spring.

At the time, a number of Hill Country landowners, the Travis Audubon Society, Hays County and a chunk of the Austin metro area announced intentions to sue if Kinder Morgan didn’t provide a plan to protect the area in question.

New Lawsuits

One of the lawsuits in progress is being put together by the TREAD Coalition, arguing that the Permian Highway Pipeline is not a Texas-only pipeline, but is an interstate pipeline according to evidence that shows that some of the gas collected from Permian Basin—to be transported by the new pipeline—actually comes from New Mexico.

The lawsuit intends to argue that if discovered to be an interstate pipeline, the project would have to be regulated by the Federal Energy Regulatory Commission and would require federal requirements on environmental study, eminent domain and transparency that are reportedly more strict than those required by the state of Texas.

“If we were to win that, [Kinder Morgan] would need to go and get the FERC permit before they could go forward,” said attorney David Braun, legal counsel for the TREAD Coalition. “All the condemnation they did would have not been legal.”

In tune with that lawsuit, on Jan. 24, four property owners in Texas' Hill Country filed a lawsuit that stated their refusal to sell their claims to the land or sell it due to the defendants' threat of using eminent domain provisions to forcefully purchase the land.

Just like in the lawsuit expected to come from the TREAD Coalition, the owners point out that the defendants don’t have legal authority to use eminent domain provisions outlined by Chapter 21 of the Texas Property Code since the pipeline in question is believed to be an interstate gas pipeline.

If found to be true, the pipeline would fall under the exclusive jurisdiction of the Natural Gas Act, which forbids construction or operation of interstate gas pipelines without a certificate of public convenience and necessity, which is issued by FERC.

In a third lawsuit, Austin City Council members and Hays County Commissioners intend to join in on another federal lawsuit against U.S. Fish and Wildlife Service, U.S. Army Corp of Engineers and Kinder Morgan for violation of the Endangered Species Act.

According to reports, the lawsuit argues that the pipeline violates the Endangered Species Act by going through the Edwards and Trinity Aquifers in Hays County, which supply drinking water for over two million people and are home to a habitat of endangered species including the Barton Springs Salamander and the Austin Blind Salamander, among others .

“Any contaminants that could leak from the pipeline would move through the aquifer could impact any of the people drinking from the aquifer and could impact the water quality and the habitat for the Barton Springs and Austin blind salamanders, which is our concern,” says Austin’s Environmental Officer Chris Herrington.

Already, Austin City Council has pledged to contribute up to $100,000 in legal funds for the suit, while plaintiffs related to the environmental lawsuit have requested a preliminary hearing to follow within the next few weeks. Plaintiffs have also requested the courts issue a delay on the project.

What’s Happening Now

Regardless of the lawsuits, land acquisition for the pipeline project is reportedly roughly 99% complete. With 1,000 parcels obtained that cover hundreds of miles, regardless of legal issues, the pipeline is reported to still be in its final stages of the permitting process.

“Some landowners definitely feel somewhat defeated,” said Jessica Karlsruher, Executive Director of the TREAD Coalition. “However, they are still very much engaged because they know that traditionally when pipelines are routed, additional pipelines follow the same route. So, if there’s one, there will be more.”

Kicking off construction marks the first stage of five phases necessary to complete the project. The Midland Reporter-Telegram reports that during these phases, construction will take place simultaneously along the pipeline’s route as to achieve pipeline service by the first quarter of 2021.

Although the project continues to experience backlash and delays, project officials told reporters that they will continue to try and communicate the value of pipeline project on all levels.

   

Tagged categories: Construction; Environmental Protection; Government; Infrastructure; Infrastructure; Lawsuits; NA; North America; Oil and Gas; Ongoing projects; Pipelines; Program/Project Management; Project Management; U.S. Army Corps of Engineers

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