Protecting landowners from a proposed 430-mile natural gas pipeline is the focus for Hays County officials as they seek to talk with Kinder Morgan about alternative routes for its proposed Permian Highway Pipeline.
But the fight now involvesTexas law, which could grant Kinder Morgan eminent domain status.
Kinder Morgan’s proposed underground pipeline will transport up to 2 billion cubic feet of natural gas per day through the state. But in order to achieve its goal, Kinder Morgan is looking to team up with other energy infrastructure companies in order to receive the right of eminent domain.
Under Texas law, if Kinder Morgan receives “common carrier” status, the company has the right of eminent domain, much like highways, roads, railroads and airports.
If Kinder Morgan proves that its pipeline will serve the general public, it could obtain eminent domain status. Kinder Morgan has partnered with EagleClaw Midstream Ventures, Apache Corporation and XTO Energy Inc.
Jeff Mundy, an attorney based in Austin with experience representing citizens in opposition to other pipelines, said more legislative oversight could change the way the Texas Railroad Commission grants companies common carrier status.
“Common carrier status is well developed in law and more attention needs to be put on oversight for the route selection of these pipelines,” Mundy said. “That’s the most glaring void in all of this. There is no real oversight by the state.”
A potential solution would be to put pressure on the Texas Legislature to draft legislation to dictate the routes pipelines must travel. In the past six years, corporations have placed 100,000 miles of pipe throughout the state, some of which are crossing populous areas like Hays County.
Hays County General Counsel Mark Kennedy said the county is ready to hold discussions with Kinder Morgan about finding an alternative route to the pipeline.
“We are also diligently prepared for the possibility that Kinder Morgan does not care to discuss alternative routes,” Kennedy said. “In that case, Hays County will focus on actively supporting the rights of its landowners and protecting the economic and environmental values in which we all have a significant investment.”
For affected landowners, once the right of eminent domain is granted, the company will have authority to enter a property. However, experts advise citizens to seek legal help for conversations about easements, compensation, damages and potential environmental concerns.
But even with legal help, energy infrastructure companies typically have the upper hand on both the citizens and the state.
A spokesperson with the Texas Railroad Commission (TRC) said the commission does not have jurisdiction to administer or enforce any of the eminent domain and property rights laws. Additionally, the route of the pipeline is at the discretion of the owner or operator.
“In Texas, pipelines are not required to be permitted before being built,” read a statement from the commission’s website. “There is no statutory or regulatory requirement that a pipeline operator seeks or receives from the Railroad Commission either a determination that there is need for a pipeline capacity or prior approval to construct a pipeline and related facilities.”
According to a statement on its website, the TRC does not determine or confer common carrier status for pipelines. The pipeline operator reports to the commission the status of a pipeline as a gas utility, common carrier or private line.
However, a company must submit a T-4 form to the commission, outlining the logistics of the pipeline, including its private or public (common carrier) status.
But some legal experts who attended the Jan. 29 public hearing on the logistics of the pipeline at the Wimberley Community Center state that the process does not allow enough scrutiny.
“I was reminded that we have a vast brain trust in Hays County and Central Texas,” Kennedy said. “In this case, the individuals that make up that brain trust are unified in their thinking: we do not want someone else’s economic benefit to damage or pose a threat to the place we call home.”