Judge denies temporary restraining order on pipeline

Kinder Morgan expressed pleasure, but opponents of the company’s planned 430-mile Permian Highway Pipeline (PHP) disagreed with a judge’s opinion that the project can proceed.

Travis County District Judge Robert Pitman ruled Feb. 14 against a temporary restraining order sought by the T.R.E.A.D. (Texas Real Estate Advocacy and Defense) coalition to delay construction of the 42-inch pipeline, which would transport natural gas from West Texas oilfields to near Houston.

In his ruling, Pitman found that plaintiffs had not proven sufficient “irreparable harm” to endangered land and aquatic species to merit emergency action.

The route of the pipeline crosses some of the most environmentally-sensitive areas of the Texas Hill Country, going within a mile of Jacob’s Well and crossing the Blanco River twice. It also traverses the Edwards and Trinity aquifers that provide drinking water to millions of people and are home to a number of federally-endangered species. Opposition to the project, the plans for which first became public knowledge in late 2018, has drawn together two unlikely groups – private property advocates and environmentalists.

The former protests the PHP’s classification as infrastructure and the ability of Kinder Morgan to use imminent domain to acquire property. A lawsuit filed on that basis by several cities, school districts and landowners in the spring of 2019 was struck down.

The latter group points to the consequences of an accident, either during construction or operation, which could permanently foul aquifers. A lawsuit filed earlier this year accusing Kinder Morgan, the U.S. Fish and Wildlife Service and the U.S. Army Corps of Engineers with violation of federal laws including the Endangered Species Act (ESA) and the Clean Water Act, meanwhile, is proceeding.

“We are pleased with the decision and look forward to continuing construction on this vital infrastructure project,” Kinder Morgan said in a prepared statement. The statement goes on to say the company has “actively worked” with stakeholders and has made more than 200 minor adjustments to its route “to accommodate landowners and address what we have learned in land surveys.”

The statement also reiterated what Kinder Morgan Vice President Allen Fore told the Hays Free Press and News-Dispatch that the company is in full compliance with the ESA. “We have actively worked with the appropriate state and federal agencies, including those agencies tasked with protecting endangered species,” it said. “PHP’s environmental assessments, among other things, comprehensively considered those endangered species that could potentially be affected by the project, and our construction plans have been designed to minimize impacts to this species.”

T.R.E.A.D. Coalition, however, pointed out that Pitman “did not rule on the merits of the lawsuit,” but rather on the narrow point of “irreparable harm,” meaning that the construction can proceed while the merits of the lawsuit are addressed.

“We do not agree with the court’s irreparable harm analysis, and its failure to consider such other significant harms as loss of heritage oaks and spread of oak wilt,” the coalition said.

The coalition also said it remains to be decided whether PHP “can proceed without review, including public hearings and comments, under the National Environmental Policy Act (NEPA),” which requires that federal action likely to cause “significant harm to the human environment” be subject to public scrutiny – which it says has not happened at either the state or federal level.

“Texans deserve a public process,” the coalition said, at both the state and federal levels, to weigh the value of PHP against the impact on our land and communities” and said it believes “the final routing decision should be made by public officials accountable to all the citizens of Texas.”

Fore said earlier this month that the PHP’s route has been broken into five segments, and that construction would begin on all five simultaneously. In part because of that, he said, the company expects product to begin flowing about a year after construction starts.

T.R.E.A.D. said a late-afternoon conference call was scheduled for Feb. 18 for both parties to establish a schedule for the next step.

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