The fight against Kinder Morgan’s Permian Highway Pipeline (PHP) is now heading into the court system.
On Monday, a multi-party lawsuit was filed in Travis County District Court on behalf of several plaintiffs, including the city of Kyle and Hays County, against Kinder Morgan and the Texas Railroad Commission (TRC) in an effort to create more oversight on the pipeline routing process. The suit also seeks to temporarily halt condemnation activity for Kinder Morgan’s Permian Highway Pipeline (PHP) until the state establishes more oversight.
David Braun, an attorney representing the Texas Real Estate Advocacy Defense (TREAD) Coalition, a local non-profit paying for the litigation, said the current process taken by entities such as Kinder Morgan to route pipelines is “not balanced, unilateral and needs to be improved.”
Braun said the point of the suit is to ask the TRC, which oversees the oil and gas industries in Texas, to establish rules and supervision requirements so landowners and communities are part of the routing process.
The PHP is a proposed $2 billion 430-mile, 42-inch underground pipeline that will transport natural gas from far west Texas to the Houston area. Officials with Kinder Morgan estimate getting the pipeline operational by late 2020.
The challenge is one of the first of its kind, said Clark Richards, with Richards Rodriguez and Skeith, the law firm that authored the litigation.
Buda, Wimberley and Hays CISD leaders have joined Kyle and Hays County in passing resolutions opposing the PHP. Resolutions against the project have also come from the Barton Springs Edwards Aquifer Conservation District, as well as the Hays Trinity Groundwater Conservation District.
Richards said the Texas Constitution grants eminent domain power to private entities, but it also requires standards, which have not been set, in how they exercise that power. Renea Hicks, who is also representing plaintiffs in the suit, said he thinks Kinder Morgan is trying to establish a corridor for pipelines through the Hill Country. Hicks added that the suit is different from previous legal fights involving the Longhorn Pipeline in Austin as it involves new infrastructure, as opposed to retrofitting an existing pipeline to carry a different fossil fuel.
“We think the courts will require the Railroad Commission to adopt standards that create transparency and openness,” Richards said.
Walt Smith, Hays County Pct. 4 Commissioner, said the Commissioners Court did its due diligence prior to joining the suit, which included talking to state legislators and coordinating with other communities and counties that could be impacted by the project. Smith added that parties in the suit seek the RRC to create a process that allows residents and jurisdictions to be part of the routing process.
Hays County Judge Ruben Becerra said county officials have tried to conduct a two-way dialogue with Kinder Morgan in recent months, but Kinder Morgan representatives have “shut it down.” Becerra said it’s “unfortunate” the lawsuit is the route that’s being taken to open up discussion.
“I think the lawsuit we contemplated is our attempt to have them (Kinder Morgan) answer to someone in Hays County,” Smith said.
Kyle Mayor Travis Mitchell, who said Kinder Morgan has “kicked over an ant pile,” felt the lawsuit is an example of people “all over the political spectrum coming together in unison.”
Part of the frustration extended to discovering “months ago” that the city had no real voice regarding the PHP and its routing, Mitchell said. Another factor was finding out only two forms were needed to be filed with the TRC for Kinder Morgan to build its pipeline and if it was going to use public highway, road or public utility easement.
However, Mitchell said the battle is meant to create a more transparent and open way for residents and jurisdictions to be part of the routing process, rather than a fight against the TRC.
State Rep. Erin Zwiener (D-Driftwood), who is not involved in the litigation, said in a statement the current pipeline routing process is “unchecked and abusive.”
“Texas is supposed to be a property rights state. That form and the process Kinder Morgan has been allowed to follow is in direct contradiction,” Mitchell said. “It’s ridiculous a for-profit company should be granted the awesome right of eminent domain without a public hearing or environmental study.”
In a statement, Kinder Morgan officials said the lawsuit is “NIMBY (Not in My Backyard)’ism” and not about a “constitutional eminent domain process that’s worked well for decades.” Officials said the PHP has exceeded requirements from the TRC.
Additionally, Kinder Morgan officials said through court proceedings, landowners are “compensated a fair value for easements on their property.”
Kinder Morgan has met with more than 100 elected officials about the project and held five public meetings, as well as met with individual land owners, according to the statement. The company has also made “more than 150 route changes to accommodate landowners” in response to what they’ve learned through land surveys.
“This lawsuit takes aim at not just the Permian Highway Pipeline (PHP) project, but all infrastructure projects, threatening the very thing that has made the Texas economy the envy of the nation,” said Kinder Morgan officials.
Changing the route north would require “extensive blasting” to deal with the rocky soil, impacting a higher number of residents, officials with Kinder Morgan said. Going south would “greatly increase the mileage directly through the center of the Edward’s Aquifer.”
“This (eminent domain) is a time honored process that is used on a limited basis when good-faith negotiations aren’t enough,” said Kinder Morgan officials in a statement. “Otherwise, one selfish landowner could stand in the way of a project that would benefit millions of Texans throughout the state.”
Hays County resident Lana Nance, who is also a plaintiff in the suit, said she is hopeful the litigation is successful and that it forces someone at the state level to listen.
TREAD officials said they expect there will be more lawsuits filed against the PHP by other communities in the near future. In recent weeks, Gillespie County Commissioners and the city of Fredericksburg have passed resolutions opposing the project.
“I don’t believe these people (Kinder Morgan) are going to stop. They’re not going to stop,” Nance said.