County files notice of intent to sue Kinder Morgan

A second round of litigation against a Houston-based firm that’s seeking to build a 42-inch, 430-mile underground natural gas pipeline could be forthcoming.

On Tuesday, Hays County Commissioners voted 4-0 to file a notice of intent to sue Kinder Morgan, the U.S. Army Corps of Engineers and the U.S. Fish and Wildlife Service relating to the controversial Permian Highway Pipeline (PHP), according to a press release. Hays County joins the Travis Audubon Society and three private plaintiffs that have filed a similar notice seeking for Kinder Morgan to conduct a full environmental impact study. Hays County Judge Ruben Becerra was absent and did not vote.

Filling of the notice stemmed from the possible environmental impact the PHP could pose to the area, if constructed.

Kinder Morgan’s PHP, a $2 billion project, is slated to go from far west Texas to the Houston area, cutting through most of the Texas Hill Country.

According to a Texas Real Estate Advocacy and Defense Coalition (TREAD) release, the PHP’s current route crosses “some of the most sensitive environmental features” in the state.

That includes both the Edwards and Edward’s-Trinity Aquifer Recharge Zones and habitat for the endangered Golden-Cheeked Warbler.

Hays County Pct. 3 Commissioner Lon Shell said a reason for taking action was due to a lack of information from Kinder Morgan on how they plan to mitigate any possible environmental impacts. Shell said the county has invested taxpayer dollars in mitigation plans aimed at minimizing impact to sensitive habitats.

Plaintiffs who filed the notice seek for a full environmental impact study under the National Environmental Policy Act (NEPA). TREAD officials said the Army Corps of Engineers confirmed Kinder Morgan intends to use the Nationwide Permitting verification process.

Through NEPA, entities are required to consider alternative routes. TREAD officials alleged Kinder Morgan could bypass a “crucial step” by signing on to existing permits in order to speed up their timeline and avoid public transparency.

Typically, a project similar in scope to the PHP goes through a full NEPA review, TREAD officials said.

Kinder Morgan estimates for the PHP to go online by the fourth quarter 2020.

“In requesting that an environmental review process be followed and a study performed by Kinder Morgan, we are asking for nothing more than what Hays County has to do when planning and building county infrastructure,” Shell said in a statement. “The County conducts extensive environmental studies when developing roadways to protect endangered species habitat and water quality.”

Plaintiffs who have filed the notice must wait 60 days before filing for litigation, per the Endangered Species Act.

“It’s our hope that Kinder Morgan will do the sensible thing and comply with federal law, which could obviate the need for a lawsuit to be filed,” said David P. Smith, an attorney representing plaintiffs in the suit.

Meanwhile, Hays County officials Tuesday supported the appeal of a ruling to dismiss litigation aimed at increasing oversight of the pipeline routing and eminent domain process.

Hays County joins Kyle in objecting to a decision made by Travis County District Judge Lara Livingtston, who in June tossed out a suit filed against Kinder Morgan and the Texas Railroad Commission.

Andrew Sansom, owner of the Hershey Ranch and plaintiff in the eminent domain lawsuit, said plaintiffs are confident, “at some level, the courts will look favorably on our argument.”

Kyle Mayor Travis Mitchell said in a statement the city seeks greater transparency in the pipeline process.

“While we respect Judge Livingston’s ruling, the Texas Constitution clearly calls for the Railroad Commission to establish rules and policies for how eminent domain is utilized by private, for-profit corporations to forcibly seize others’ property. No such process currently exists,” Mitchell said.

Allen Fore, vice president of public affairs for Kinder Morgan, said in a statement the company feels “confident” the Travis County District Court ruled in accordance to settled law. Fore said Kinder Moran will continue to work with all stakeholders, including state and federal regulators.

“We are also complying with all applicable laws related to endangered species along the pipeline route,” Fore said.

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